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31 Cards in this Set
- Front
- Back
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Duties |
Owed to clients - Confidentiality - Loyalty - Financial responsibility - Competence Owed to entities (other than clients) - Candor/truthfulness - Fairness - Dignity/decorum Clients Love Fierce Counsel / Courts Feel Differently |
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Duty of confidentiality |
Duty not to reveal anything related to the representation of a client or use that information against her without her consent |
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Duty of confidentiality--exceptions |
- Consent (express/implied) - For lawyer's defense - Compelled by court order or law - Compelled by ethical duties [not CA] - To prevent death or substantial bodily harm [CA--but must first, if reasonable under the circumstances, make a good-faith effort to persuade the client against the act and inform the client of your decision to reveal his confidences - To prevent fraud or crimes causing financial injury if client is using your service to commit the crime and disclosure would prevent or mitigate substantial financial loss [not CA] |
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Duty of loyalty |
- Conflict of interest exists if an interest of another client, yourself or a third party materially limits or is adverse to your representation--your sole duty is to your client, not to any third party - [CA] Strictly requires consent for potential conflict and additional disclosure if it becomes actual conflict - Ignorance of conflict is no excuse, unless it arises from short-term legal services under court, agency or non-profit program |
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Duty of loyalty--imputed disqualification |
- Any group of lawyers that work together closely or share responsibilities (e.g., law firm, corporate legal department) share each other's conflicts - Exception for conflicts from previous government service or previous firm, as long as there are safeguards such as "ethical wall" - Remedies--depends on posture of case--e.g., refuse to take case; advise multiple clients to get separate counsel; withdraw - [CA] Purely personal conflicts of colleague are not imputed; also, CA disqualifies, but does not discipline, lawyer for imputed conflicts |
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Conflicts of interest--consent/waiver |
- Conflicts may be tolerated if case-by-case factual analysis establishes:
(1) you reasonably believe you can represent everyone effectively ([CA] belief need not be objectively reasonable); (2) you inform each affected client ([CA] in writing); AND (3) client consents in writing ([CA] client consent is not required for purely personal conflicts--written disclosure is sufficient) - There are conflicts that are nonconsentable (prohibited law or deemed never reasonable) |
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Conflicts of interest--between or among clients |
- Cannot represent opposing parties in same matter - Can take representation adverse to current client in different matter provided you have all clients' consents--[CA statutory exception] no conflict when lawyer represents both policyholder and his insurance company as clients where insurer's interest in each matter is only as indemnity provider - Positions do not create conflicts, but if any client would be disadvantaged due to your representation for inconsistent position, you must obtain consent - Representing multiple clients in same matter gives rise to potential conflicts that generally require disclosure and consent - Cannot take on new client with interests materially adverse to former client without former client's consent (continuing duty of confidentiality and duty of loyalty) |
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Conflicts of interest--former government lawyer |
- If you worked "personally and substantially" on "matter", ABA bars you from working on same matter in later private practice without government's consent - Exception to imputed disqualification--ABA standard: (1) screened off; (2) no sharing of fee in the matter; (3) former government employer is informed - Judges, clerks, arbitrators and other third party neutrals--consent of all parties required to work on same matter ([CA] prosecutor explicitly disqualified from working on defense of same case--civil cases may be allowed with screening) |
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Conflicts of interest--between lawyer and client |
- Cannot solicit substantial gift from client or draft legal instrument for client who is not your close relative if it provides substantial gift to you or your relative - Cannot limit your client's right to report you for professional misconduct or to cooperate in investigation - Cannot limit your malpractice liability when entering into relationship with client unless client is independently represented [ABA rules]--[CA] malpractice limits barred entirely - Cannot settle malpractice claim without first giving written advice to client to consult outside lawyer first - Cannot buy publication rights to client's story until representation has ended--[CA] contracts during proceedings discouraged but allowed if judge is satisfied client clearly understands and consents - Cannot provide any financial assistance to client except litigation expenses for indigent client and advance of litigation expenses in contingent fee cases--[CA] cannot promise to pay prospective client's debts, but can make loans to client in all matters for any purpose with written loan agreement - Can enter into business transactions or obtain adverse interests only if (1) terms fair to client; (2) disclosed in understandable writing; (3) client advised to consult outside lawyer; (4) client provides consent in writing - Can receive stock as payment if fair and reasonable under circumstances known to lawyer at time of acquisition - Can serve on board of non-profit legal services organization--serving on board of corporate client is discouraged - [ABA] Cannot appear as counsel and witness in same trial unless your testimony is uncontested or about legal services rendered, or your distinctive value to case means withdrawal would impose substantial hardship on client--consent is required if your testimony might prejudice client - [CA] Can testify in any bench trial and, if client consents, in jury trial - Cannot oppose party represented by your immediate family without client consent--[CA] purely personal conflict, so written disclosure is sufficient--[CA] must disclose disclosure of any legal, business or personal relationship with any party or witness |
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Conflicts of interest--third parties |
- Payment from third party is permitted only with informed client consent ([CA] in writing)--there must be no interference with lawyer's independence of professional judgment or with lawyer-client relationship--confidences cannot be shared - Organizational client--entity is your client |
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Federal securities law--reporting up and reporting out |
- Must report material violation of securities laws to CEO or chief legal counsel - If they do not respond, must go to highest authority in company - If you reasonably believe it necessary to prevent fraud, perjury or substantial injury to organization or investors, or to rectify financial injury from violation that involved your services, may disclose confidential information to SEC without client consent * CA's more restrictive confidentiality rules are preempted |
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Financial duties to client--attorney fees |
- [ABA] Fees must be reasonable taking into account labor, novelty, difficulty, skill and timing required, results obtained, attorney's experience, other demands on attorney, fee arrangement, etc. - [CA] Fee must not be unconscionably high - Double-billing ordinarily considered unreasonable and dishonest--[CA] allowed if (1) fee charged is not unconscionable; (2) attorney clearly disclosed billing practice at onset of relationship; (3) clients' consents were obtained - In fee disputes, ABA encourages arbitration; CA requires fee arbitration if client sues and requests arbitration |
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Financial duties to client--non-contingent fee cases |
- Agreement must include how fee is calculated, what services are covered and lawyer's and client's duties - [CA] Also requires written agreement unless (1) $1,000 or less, (2) with corporate client, (3) for routine service for regular client OR (4) emergency or impractical |
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Financial duties to client--contingent fee cases |
- Fee agreements must be written, signed by client and contain (1) your percent, (2) what expenses will be deducted from recovery AND (3) whether your percent is taken before or after expenses - [CA] Also requires statement of how work not covered by contingency fee will be paid and that lawyers' fees are negotiable - Limits: no contingent fees in domestic relations and criminal cases ([CA] allowed in domestic relations cases if they do not promote dissolution of savable marriage |
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Financial duties to client--fee splitting |
- Generally OK to split fees with lawyers in your firm - May split fees with lawyers outside your firm only if total fee is ethical and there is written disclosure and client consent--[ABA only--not CA] division must be proportional to work done (unless each is jointly responsible for action) - Generally may not split fees with non-lawyers |
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Partnership with non-lawyers |
- Partnership with non-lawyers in providing legal services is prohibited--non-lawyers cannot be partners, shareholders or officers or control or direct your professional judgment - Reciprocal referrals with other professionals are OK if they are not exclusive and you explain arrangement to client - Ethical rules apply to any law-related services you personally provide--if provided by entity you only control, must disclose that attorney-client safeguards do not apply |
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Financial duties to client--client trust accounts |
- Duty to safeguard client's property by labeling and storing it in safe place - Money held for client (including advances for costs/expenses and unearned fees) must go into interest-bearing client trust account--if funds are too small or held for insufficient time to cover bank charges, deposit them together in "pooled client trust account"--interest (IOLTA) goes to state bar for services for the poor - You can pay third parties with client's money with client consent--if there is fee dispute or lawful claim by third party over client's funds or property, you must withhold disputed portion in client trust account until resolution of claim |
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Duty of competence |
- Duty to render competent service to client - [ABA] Competence = using the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation - Incompetence exposes you to (1) discipline by state bar ([CA] only if you intentionally, recklessly or repeatedly fail to perform legal services with competence); (2) disqualification in litigated matter; (3) civil malpractice liability (need showing of breach of duty of due care) |
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Other duties |
- Duty of diligence--duty to diligently and promptly pursue case to completion - Duty to communicate--duty to keep client informed about case, answer client communications and convey settlement offers - No duty to accept representation (but duty to reject if accepting would violate law or ethical rule (e.g., duty of competence)) - Duty to withdraw from representation if fired or if continuing would violate law or ethical rule (e.g., duty of competence)--[CA] must withdraw if client acts without probable cause and to harass or maliciously injure another
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Permissive withdrawal |
- May withdraw if you convince court there is good cause - Recognized causes--criminal, fraudulent or repugnant course of action; failure to fulfill obligation to you (fee agreement, etc.) after reasonable warning--[ABA] also: unreasonable financial burden; your service being used for crime or fraud; anytime it won't damage client's interests - Procedures: (1) timely notice to client; (2) prompt return of any unspent fee and expense advances and all of client's property and material papers (including your work product)--[CA] cannot hold client's materials hostage to get paid |
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Scope of representation |
Client makes decisions about substantive rights--lawyer makes decisions on legal strategy |
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Sex with client |
- ABA prohibits consensual sex with client unless you had pre-existing sexual relationship - CA does not prohibit sexual relationship unless the lawyer (1) demands sexual relations as condition of professional representation, (2) enters into sexual relations by coercion or undue influence or (3) represents client incompetently because of sexual relationship |
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Duties of candor to public and dignity of profession--advertising |
- Advertising must not be false or misleading--[CA] presumption of impropriety if ad contains guarantees, warranties or predictions of result
- Cannot advertise claims of specialization unless you are "certified specialist"--[CA] 4 E's (experience, examination, education and evaluations) required--[ABA] certification by approved organizations - Cannot harass or solicit someone who has indicated she wants to be left alone |
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Duties of candor to public and dignity of profession--solicitation |
- Cannot seek professional employment for pecuniary gain by initiating live or telephone contact with specific person with whom you have no prior professional, personal or family relationship--[CA] "live or telephone" is read narrowly - [CA] Presumption of impropriety for communications made at scene of accident or en route to medical facility, and to potential clients that you should know are not in physical or mental state to exercise reasonable judgment |
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Duty of candor to court and fairness to adversary |
- Cannot engage in conduct involving dishonesty, fraud or misrepresentation--these duties can trump conflicting duties of confidentiality and loyalty to client - Cannot make false statement of material fact or offer evidence you know if false to tribunal, or fail to correct false statement of material fact or law that you previously presented - Cannot knowingly facilitate client perjury (in criminal cases, must balance 5th Amend. right to testify and 6th Amend. right to effective assistance of counsel*) - Cannot counsel or assist witness to testify falsely or to become unavailable * Counsel to testify truthfully or not take stand; then try to withdraw; then [ABA] tell judge--[CA] allow D to testify in narrative fashion but do not further deception |
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Duty to produce evidence |
- Cannot suppress any evidence that you or your client has legal obligation to reveal or produce, regardless of duty of loyalty--cannot obstruct access to or tamper with fruits or instrumentalities of crime - Cannot interfere with evidence - In ex parte proceedings, your duties of candor to court and fairness to adversary require you to volunteer relevant information, trumping normal presumption that you not reveal facts harmful to client - Prosecutors have special duty to timely disclose evidence favorable to defense |
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Other duties relating to candor/truthfulness |
- Duty to state law truthfully - Duty to uphold law (exceptions to duty of confidentiality) |
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Additional duties of fairness |
- Duty to behave honestly in all dealings, both in and out of legal practice--must act to promote public confidence in integrity and efficiency of legal system and profession - [CA] Cannot use threats to being disciplinary, administrative or criminal proceedings as leverage in civil dispute - Dealing with press--must avoid out of court statement you reasonably should know have substantial likelihood of materially prejudicing case (duty not to interfere with D's right to fair trial), with exceptions (e.g., protecting client from substantial undue prejudice from recent publicity that was not self-initiated)--prosecutors must not make comments that have substantial likelihood of heightening public condemnation of accused |
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Preserving dignity of court |
- Duty to preserve decorum and impartiality of tribunal (improper influence--talking to prospective or impaneled juror before and during trial; chicanery; abusive or obstreperous conduct, belligerence, theatrics) - Duty to expedite cases--[ABA] affirmative duty to expedite--[CA] duty not to delay to harass adversary or for your personal gain or convenience |
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Additional duties to profession and public |
- No unauthorized or unlicensed practice of law - Multi-jurisdictional practices--[ABA] temporary practice out-of-state generally allowed if you are in good standing with association with locally admitted lawyer, etc.--[CA] more restrictive - Policing misconduct--[ABA] must report other lawyer's violation--[CA] external reporting not required, but you may be disciplined for knowing about colleague's violation and doing nothing to prevent it; self-reporting required if charged with felony, convicted of serious crimes or found civilly liable for fraud or breach of fiduciary duty, disciplines or sanctioned, or sued for malpractice 3 times in a year |
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Duties of subordinate lawyers |
- Clear violation of ethical rule--subject to discipline - Debatable problem--supervisor is solely responsible |
