Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
29 Cards in this Set
- Front
- Back
|
Duties to Client
|
1. Confidentiality
2. Loyalty 3. Financial Responsibility 4. Competence 5. Diligence 6. Communicate 7. Accepting & Withdrawing from Representation |
|
|
Practice of Law within a State
|
Factors
1. Sufficient Contact 2. Nature of Activities CA Allows Entry For: 1. Non-profit legal services attorneys 2. In-House counsel 3. Litigating attorneys participating in filing in CA 4. Transactional Attorneys: in federal or out of state matters |
|
|
Duty of Confidentiality
|
Lawyer shall not reveal anything related to the representation of a client without consent
|
|
|
Attorney Client Privilege
|
Requirements
1. Confidential communication between attorney and client 2. Client seeking legal services 3. No consent |
|
|
Confidentiality Exceptions
|
1. Consent by Client
2. Death/SBI: If disclosure reasonably necessary to prevent an act (CA: Crime) resulting in death/SBI + CA: good faith effort to prevent & inform of decision to reveal, if reasonable 3. Using services to commit financial crimes (ABA) 4. Self-Defense |
|
|
Duty of Loyalty
|
Lawyer must refrain from taking on representation that materially limits or is adverse to a client
Requirements to Represent: 1. L can represent everyone effectively (ABA: reasonable belief) 2. Inform each affected client 3. Client consents in writing |
|
|
Lawyer Dealing Adversely with Client
|
1. Terms fully disclosed & client consents
2. Fair and reasonable 3. Client informed in writing he is advised to seek independent counsel 4. Consents in writing after opportunity to consult counsel |
|
|
Gifts from Clients
|
ABA: No self-interested drafting of any instrument giving a substantial gift (unless family)
CA: Allows interested drafting if no undue influence (NOTE: must get certificate) |
|
|
Examples of Client Conflicts
|
No representing opposing clients where:
1. On opposite sides of same matter 2. Opposing present client's interests (EXCEPT: indemnity) 3. Representing both in same matter 4. Inconsistent positions (EXCEPT: waiver allowed) 5. New client risks disclosure of confidential information from previous client 6. Government lawyer now in private practice |
|
|
Fee Agreements
|
CA requires all fee agreements to be in writing
ABA requires writing for contingency fees, prefers them for all other representation |
|
|
Fee Agreement Requirements
|
1. Scope of representation and rate of fee
2. Before or within a reasonable time after commencing 3. Communicated in writing (ABA: preferably) EXCEPT: (CA) - Fee under $1000 - Corporate client - Emergency or impractical Not applicable to regular client at regular rate |
|
|
Contingency Fee Requirements
|
1. L's percentage recovery
2. Whether expenses are deducted from fee 3. Whether % is calculated before or after expenses 4. How work not covered by contingency fee will be paid (CA) 5. Recital that fees are negotiable (CA) CA allows charging liens |
|
|
Contingency Fees Impermissible
|
1. Domestic relations (EXCEPT where defending divorce or marriage clearly over)
2. Criminal cases 3. Expert witnesses 4. Court thinks likelihood of recovery is very high 5. Recovery disproportionate to expected work |
|
|
Amount of Fees
|
CA: No unconscionable fees
ABA: No unreasonable fees |
|
|
Fee Splitting
|
Lawyers inside firm: OK
Lawyers outside firm: Allowed only if 1. Total fee is ethical 2. Written disclosure and consent by client 3. Division proportional to work done Non-Lawyers: Not allowed, unless salary/benefits |
|
|
Referral Fees: General Rule
|
No giving anything of value for recommendations or referrals (ABA/General Rule) EXCEPT:
- Reasonable cost of ads - Usual charges for a lawyer referral service (+ CA allows referral fees) - Buying a law practice - Non-exclusive referral agreements, if client informed - Gifts for recommendations (CA) |
|
|
Referral Fees: CA Formalities
|
Pure referral fees permitted where:
1. Client informed of terms of fee split and consents in writing 2. Total fee not increased by division 3. Total fee not unconscionable EXCEPT: No formalities needed for co-counsel |
|
|
Duty of Care
|
L must use the legal skill, knowledge, thoroughness, and preparation reasonably necessary for representation
|
|
|
Duty of Diligence
|
L must diligently, promptly, and zealously pursue the case to completion
|
|
|
Duty to Inform
|
L must keep client informed about a case, including:
- Communicating settlement offers - Returning phone calls & emails |
|
|
Duty to Accept/Reject Clients
|
No general duty to accept, except CA has duty never to reject defenseless for personal reasons
Duty to Reject: - Acceptance would violate law or ethics rule - Lawyer impaired (physically or mentally) - Client repugnance would impair ability to represent - Objective to harass or maliciously injure without probable cause (CA) |
|
|
Withdrawal: when is it mandatory/permissive?
|
Mandatory: Must withdraw if continuing would violate a law or ethics rule
Permissive: Allowed where court convinced 1. Good cause exists 2. No undue delay or disruption |
|
|
Duties upon Withdrawing
|
1. Timely notice to client
2. Promptly return advances of fees and expenses 3. Promptly hand over all material papers and property of client (including work product) |
|
|
Duties to Third Parties
|
1. Candor/Truthfulness
2. Fairness 3. Dignity/Decorum Duties Owed To: - Public at large - Court - Adversaries - Profession - Other Third Parties |
|
|
Duty of Candor
|
Lawyer prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation
|
|
|
Duty of Candor: Production of Evidence
|
+ Must not make false statement, must correct false statements
+ Client Perjury: CA uses narrative method, ABA requires disclosure + No counseling false testimony or unavailability + Must produce relevant evidence in lawyer's possession + Must state law truthfully + Must uphold the law |
|
|
Duties of Fairness
|
Duty to behave honestly in all dealings and promote public confidence in legal system
+ No lying to adversaries + No communicating with represented parties + No press communications if *substantial likelihood* of *materially prejudicing* case + Prosecutors must have PC to prosecute |
|
|
Duty to Preserve Dignity of Court
|
1. Must preserve impartiality
- No influencing jurors improperly - No chicanery 2. Must preserve decorum of tribunal - No bad language 3. Must expedite cases (ABA: no delaying) - No abusing discovery |
|
|
Additional Duties to Public and Profession
|
1. No engaging in the unauthorized practice of law
2. Mandatory Reporting Misconduct: * ABA: Substantial questions going to the honesty of a lawyer * CA: Self-reporting system |
