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79 Cards in this Set
- Front
- Back
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Organizing your essay
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The lawyer has a duty of ____________ to ____________.
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Duties owed to clients
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Confidentiality
Loyalty Financial Responsibility Competence and other reasonable things |
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Duties to entities other than clients (i.e. court, adversasries, parties and their counsel, legal profession, third parties, public)
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Candor / Truthfulness
Fairness Dignity / Decorum and other reasonable things |
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Building an essay
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FIRAC
Organize by Factual circumstances then organize by duties / your issues then flush them out with the rules/analayiss for each duty. |
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General Rule of Duty of Confidentiality?
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Don't reveal anything related to the representation of a client without her consent.
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The rationale is...
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to maximize trust and therefore candor, allowing hte adversarial system to work.
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What is the scope of the duty of confidentiality?
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DOC applies regardless whether the client requested it to be kept confidential or whether the revelation might harm or embarrass the client.
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The duty of confidentiality can attach...
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...before a lawyer-client relationship is formed or even if none is formed.
(if no employment results, the party seeking to disqualify a lawyer bears the burden of proving confidences were actually imparted. ) |
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Angelina filled out an online form with background facts on divorce lawfirm's website. Above the submit button a list of terms stated: "I agree I am not forming an atotrney-clietn relationship or a confidential relationship by submitting this. Lawfirm discovered they already representated Angelina's husband in the divorce. Now what?
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Here, the duty attached because the website disclaimer was not in plain enough terms. Result: Lawfirm must withdraw from all representations!
Compare: I understand agree that lawfirm will have no duty to keep confidential the information I am not transmitting to LawFirm." |
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Once attached, your duty of confidentiality continues...
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... even after formal representation, and even after death.
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What's the difference between A-C privilege and duty of confidentiality?
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A-C privilege is an evidence rule that allows the client or privilege holder to prevent you from testifying about confidential communications from her or her agents to you. Although it overlaps with privilege,
CONFIDENTIALITY IS BROADER. |
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Why is confidentiality broader than AC Privilege?
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It applies regardless of the source of the information,
to anything not generally known, and to disclosures beyond the legal representation, including those that could reasonably lead to discovery of information leading to the representation. |
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What are the exceptions to the duty of confidentality?
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1. Express / Implied Consent
2. Defending yourself 3. Court order / other ethical duties / changing firms 4. Crimes |
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DOC exc: Consent?
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If the client consents after consultation, a lawyer may reveal otherwise confidential information.
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Your client hires you to get a patent on a newly synthesized steroid. May you reveal his invention to the Patent Office?
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Yes. You have implied consent to reveal what's necessary to render your legal services.
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DOC EXCEPTION: DEFENDING YOURSELF:::
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Your client
(i) sue you for malpractice, (ii) brings disciplinary actions against you, and (iii) refuses to pay you, forcing you to sue him for your fees. All of these circumstances, including seeking an ethics opinion, fall into the exception for revealing information NECESSARY TO ESTABLISH YOU CLAIM OR DEFENSE. |
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DOC EXCEPTION: CHANGING FIRMS:::
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If compelled by a final court order, law, or other ethical duties,
i.e. you may disclose without client consent non-privileged, minimal information needed for a conflicts check when moving to a new law firm. |
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DOC EXCEPTION: CRIMES: DEATH OR SUBSTANTIAL HARM
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You may reveal what's necessary to prevent an act if you reasonably believe it will prevent reasonably certain death or substantial bodily harm.
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i.e. your client tells you that his adulterated drugs have caused the death of a ball player and pose a mortal danger to others still taking it.
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Thus, you may reveal his ongoing distribution.
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In california, you must...
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.. first, if reasonable in the circumstances, (1) make a good faith effort to persuade the client not to commit the act, and
(ii) inform the client of your decision to reveal his confidences. |
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What is duty of loyalty?
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You have a duty of loyalty to your client.
If an interest of another client, yourself, or a third party materially limits or is adverse to loyal representation, you have a potential or actual conflict of interest. |
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Tip: Watch for evolving fact patterns, i.e....
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a potential conflict hat becomes an actual conflict after representation begins. IRAC each as distinct issues.
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You are ordinarily responsible even if...
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you are ignorant about a conflict.
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The exception is...
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for short-term legal services
under a court, agency, or non-profit program, where you are responsible only if you actually knew of a conflict. |
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Imputed disqualification means...
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... any group of lawyers that work together closely or share responsibilities share each others' conflicts.
i.e. private firm or corporate law departments. s.t. discipline |
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In regards to imputed DQ, california...
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... disqualifies, does not discipline a lawyer for imputed conflicts.
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EXCEPTIONS: to Imputed DQ: ABA
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when one lawyer's conflicts arise
- from previous government service - or work for adverse parties at a previous firm, representation by her colleagues may be allowed with safeguards such as screening. |
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California also...
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... relaxes imputation of conflicts that are purely personal to the lawyer and for short-term legal services under non-profit or court programs.
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Remedies for the conflict depend on the posture of the case: can be:::
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refuse to take the case
advise multiple clients to get separate counsel withdraw |
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An ethical wall...
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... may screen off the lawyer with a conflict from colleagues to cure their imputed disqualifications. Client consent may also be required.
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Possible conflicts rules
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Some conflicts may be tolerated depending on a case by case factual analysis of three elements:
1. "I can do it!" 2. Inform 3. written consent 4. Screening? |
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1. "I can do it!"
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1. You reasonably believe you can represent everyone effectively despite the potential or actual conflict (CA does not require the belief be objectively reasonable); and
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2. Inform
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2. You inform each affected client.
(if DOC prevents you from fully disclosing information the client needs to understand the conflict, then consent might not be possible.); AND |
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3. written consent
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3. the client consents, confirmed in writing (CA allows certain conflicts that are personal to the lawyer to be merely disclosed in writing to the client.
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4. Screening?
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4. Some imputed conflicts will also require screening to be reasonable.
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Your law firm represents Texaco in labor matters, although you have done no work for it. Lundwall, a former texaco employee asks you to help him sue texaco for cutting off his benefits. Can you?
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Never - imputed DQ means you represent Texaco.
Lundwall and Texaco are in direct conflict, it is unreasonable to represent both. |
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Assume your firm's only contact with texaco is representing it in a securities action. May you now take the labor claim of Lundwall v. Texaco?
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A representation adverse to a current client in another matter requires all clients consent.
CA statutory exception: there is no conflict when a lawyer represents a policy |
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A representation adverse to a current client in another matter requires all clients consent.
CA statutory exception::::: |
CA: there is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where the insurer's interest in each matter is only as an indemnity provider.
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Norcal Insco retains your firm to represent Driver 1 in tort case: May you now represent Driver 2 in a different case against Driver 3 and NOrcal Insco, Driver 3's insurer?
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Yes - because Norcal is only an indemnity provider in both, it falls into the exception.
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You need to argue both for and against the health care law in two different appeals. Is that ok?
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Likely yes, positions usually don't create conflict, but if either would be disadvantaged you must obtain counsel.
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Representing multiple clients in the same matter or acting as an intermediary...
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... raises significant risks that your service may become materially limited as a result of the others' interest. These potential conflicts generally require disclosure and consent.
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Examples of previous card:
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a corporation AND any of its directors, officers, employees or shareholders;
both spouses in an uncontested divorce or drafting wills. |
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Kevorkian's insurance company hires you to defend him and it in a malpractice action. This presents...
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a potential conflict, but is OK with reasonable consent.
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Now, however, kevorkian tells you he used medically "unorthodox practices" on the plaintiff that are not covered by his malpractice insurance policy. Now there is a direct conflict between Kevorkian and his insurance company over coverage. Best remedy for this conflict?
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Withdraw from both and advise them to get separate counsel.
You must at least withdraw from representing Insco because you have relevant, confidential information from kevorkian that you cannot use in pursuing undivided loyal representation of InsCo. |
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In criminal cases, dual representation may also impede...
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... the 6th Amendment's guarantee of effective assistance of counsel.
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Tip: always look for confidentiality breaches in multiple client representations.
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Tip: always look for confidentiality breaches in multiple client representations.
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If confidential information from a former client might be relevant to a new client's matter...
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... you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client.
Rule: you cannot take on a new client with interests materially adverse to a former client without the former's consent. |
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Kevin asks you to represent him in his divorce from Britney, but your senior partner once represented Britney in a business deal. OK?
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Imputed DQ applies - your partner's conflict are yours. /// Maybe it depends on the nature of the work done.
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What if your partner had only represented a real estate venture in which britney was a limited partner?
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Here, they said it was likely okay because britney was only a limited partner, you know little about her.
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What if you once defended Britney against copyright infringement charges, gaining access to her private recording notes. Can you use that knowledge now to represent Christina in an infringement action against Britney?
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No.
Rule: Using non-public confidential information against a former clietn is unreasonable without consent. |
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Ask:::
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Do the representations overlap in fucntion, scope or information?
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If you leave your firm, can it now represent Christina in her action against Britney?
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Not if:
(i) the matters are substnatially related or the same, and (ii) any remaining lawyer has confidential material info. |
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At your new firm, your conflicts will not extend to your new colleagues if you:
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(1) are timely and effectively screened:
(2) receive no direct part of the fee, and (3) your former client receives notice, and (4) periodic certifications of compliance with these conditions |
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The ABA bars a government lawyer who worked...
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personally and substantially on a matter from working on the same matter later in private practice without govenrment's consent.
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You've left the Equal employment opportunity commission where you worked on regulations prohibiting religious discrimination. AT your new firm, can you litigate the meaning of those regulations?
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Yes, regulations are not a matter. That's a specific dispute between specific people over specific issues.
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What if you litigated an anti-discrimination suit against Haliburton while at hte EEOC? Now, at a private firm, may you represent Halliburton in that case?
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No that's a "matter" --- not without EEOC's consent.
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May other members of your firm litigate the anti-discimrination suit?
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Yes if the three ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers are met.
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The three conditions are:
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1) you are screened off; and
2) you do not share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); and 3) Your former government employer is informed. |
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What if you were a judicial clerk on the Ninth circuit and worked on the EEOC v. Halliburton cases?
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the same rules apply to judges, clerks, arbitrators, and other attorneys.
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CA cases also screen....
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... past public sector colleagues in civil cases. CA law explicitly disqualifies a prosecutor in a case from later working on the defense side of that case.
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CONFLICTS BETWEEN LAWYER AND CLIENT
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...
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Gifts to the lawyer or lawyer's family?
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You must not solicit a substantial gift from a client, or draft a legal instrument for a client who is not your close relative, if it provides a substantial gift to you or your relative.
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Limiting Liability?
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You cannot limit your client's right to report you for ethical or other professional violations. You cannot limits your malpractice liability when you enter into a relationship with your client, unless, under ABA RULES, the client is independently represented in making the agreement.
CA bars malpractice limits |
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If a client later does make a malpractice claim against you...
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... you can only settle after written advice to the client to consult an outside lawyer first.
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Halfway through the criminal trial, Defendant offers to sell his lawyer rights to his story to raise some needed cash. Can the lawyer accept? ABA:
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not before the representation has ended.
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Halfway through the criminal trial, Defendant offers to sell his lawyer rights to his story to raise some needed cash. Can the lawyer accept? California:::
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Maybe. CA case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents.
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Loans and advances to your client?
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The ABA forbids financial assistance, except for litigation expenses for an indigent client, and the advance of litigation expenses in contingent fee cases.
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$$$ under California,
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... CA forbids promising to pay a prospective client's debts, but allows loans to a client in all matters for any purpose with a written loan agreement.
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Business transactions or adverse interests??
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Acronym: First Discuss Over Coffee
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You may enter into business with a client or obtain an interest adverse to hers only if:::
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1) the terms are FAIR to the client,
2) DISCLOSED in understandable writing, 3) the client has an OPPORTUNITY to consult an OUTSIDE lawyer, aaannnddd 4) your client provides written CONSENT, or in CA, written disclosure. |
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In representing a start-up company, its law firm agreed to accept as payment shares of stock equal to the value of its services. Assuming that the work is valued reasonably, and the transaction is documented, may it do so?
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Yes, if it is fair and reasonable under the circumstances known to the lawyer, when the interest was acquired.
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Be particularly cautious if...
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... the investment is by individual firm members or if the acquisition represents a major asset that might distort the firm's advice to the company, i.e. regarding disclosure of bad news.
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Board service
Service on the board of directors of a non-profit legal services organization... |
... is allowed. There is also no bar to sitting on the Board of a corporate client, although that is strongly discouraged, becuase it is likely to compromise duties of loyalty and confidentiality.
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Attorney Shana is a member of the Board of directors of World Bucks, Inc. Paul, World's CEO, asks Shana to defend in in an invesitgation of his alleged embezzlement of company money. May Shaha represnt him?
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NO. Shaha has a fiduciary duty to the corporation in her personal capacity as a member of the Board. World and Paul are in direct conflict, and shaha cannot be loyal to both.
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Trial counsel as a necessary witness?
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ABA Rules bar your appearance as counsel and witness in teh same trial unless
(i) your testimony is uncontested, (ii) or regarding the nature and value of services rendered, or (iii) if your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might create prejudice to the client, consent is required, and the conflict is imputed to colleagues. |
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California: tiral counsel as necessar witness --
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California is less restrictive: you may testify in any bench trial, and -- if the client consents, in a jury trial.
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Close relationships with your adversary's lawyer?
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you can't oppose a party represented by your relative without client consent. Close relations clearly include: immediate family, ie.. you parent, child sibling, and spouse.
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California explicitly recognizes...
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other intimates, i.e. shackmates, and requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party or witness in the same matter.
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This conflict is not imputed to colleagues...
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nor are sexual relations with the client.
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