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59 Cards in this Set
- Front
- Back
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Duties Owed to Clients
(Clients Love Fierce Counsel) |
Confidentiality
Loyalty Financial Responsibilities Competence |
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Duties Owed to Other Entities:
Court/Tribunal, Adversaries (parties and their counsel), Profession, 3rd Ptys, Public (Courts Feel Differently |
Candor/Truthfulness
Fairness Dignity/Decorum ...(and other reasonable things) |
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Essay Approach
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Within each COQ, outline by identifying every major duty you have to each individual client.
"The lawyer owes a duty of (duty) to (person/thing)." Then look for CONFLICTING DUTIES to other clients or entities. Discuss conflicting duties in clusters, then go to next major duty owed to your client. Then look for misc. duties (eg. Public or Profession) and discuss them. |
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Lawyer Advertising
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Supr. Ct has recognized lawyer advertising as commercial speech protected by the 1st and 14th amendments and held that a state may not flatly prohibit lawyer advertising unless it is false or misleading.
(ex: a firm can advertise their discounted contingency fee so long as it's true and not misleading) |
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Lawyer offers Financial Assistance to Client
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Lawyer may not offer financial assistance to a (prospective) client in the context of a contemplated or pending litigation.
Lawyer may only help with court costs and litigation expenses, May also make a loan to clients if client promises in writing to repay (IOU). |
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Lawyer (Firm) Letters to Victims
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Must not seek FEE-PAYING work by initializing a live telephone or personal contact,
BUT may send TRUTHFUL, NON-DECEPTIVE letters to persons known to face a specific legal problem. Limitation: If L knows RECIPIENT DOES NOT WANT TO SPEAK to him, L would be subject to discipline (don't be too pushy). |
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Lawyer Mailings that seek Fee-paying work
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Must be clearly labeled as "Advertising Material" on the OUTSIDE OF THE ENVELOPE, and on the FIRST PAGE OF THE COMMUNICATION.
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L communications presumed false/misleading
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- communications delivered to a potential client in a time of PHYSICAL OR MENTAL STRESS,
- at an accident scene, hospital, or health care center, - UNLESS, L can prove otherwise (not false or misleading). |
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L Gifts to a Potential Client
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ex: if a lawyer sends a floral arrangement to a potential client, it must be clearly identified as an advertisement, or else it may be false or misleading.
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Firm's Use of Non-Lawyers
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A lawyer is subject to discipline for assisting a non-lawyer to engage in the unauthorized practice of law (ie, doing things that call for PROFESSIONAL JUDGMENT of a lawyer).
Non Lawyers May: - perform fact investigation - interview witnesses May NOT: - negotiate w/ insurance adjusters - propose settlements with clients - explain releases to clients |
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What should an attorney do when a client gives her incriminating evidence?
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Duty of Confidentiality Conflicts with Duty of Fairness/Candor to the Tribunal
Confidentiality: not to reveal an info relating to rep of client. Fairness: not to alter, destroy, or conceal evidence (not to falsify evidence) When faced with conflicting Duties - discuss BOTH duties and identify the competing concerns before reasoning to a conclusion. |
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Perjury by a Criminal DF
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ABA: where a L knows that her client has, or is about to testify falsely in his own defense, she MUST: 1) try to persuade the client not to, 2) if fails, try to withdraw, 3) if will not remedy, SHOULD DISCLOSE to court.
CA: 1) try to persuade the client not to, 2) if fails, MAY seek court's permission to withdraw, 3) if court refuses, MUST PROCEED with case, and call perjurious client to testify in a narrative fashion. |
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Pre-Existing Documents and Things
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A lawyer who receives incriminating evidence from a client must turn it over to the proper authorities.
EX: receiving illegally marked $100 bills from client as payment must be handed over (though L cannot reveal the SOURCE of the $) |
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Lawyer Defending in Criminal Proceedings
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A L may conduct a defense so that every element of the case must be established.
i.e., lawyer is not subject to discipline for arguing that the prosecution failed to prove an element beyond a reasonable doubt (as a DF in a criminal case) Put the prosecution to its burdens of proving every element of the case beyond a reas doubt. |
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Attorney's duties concerning Withdrawal
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An attorney who withdraws MUST RETURN all papers and property to which the client is entitled and cannot refuse to return the client's file to compel the client to pay outstanding fees.
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Contracting to Limit Malpractice Liability / Settling Malpractice Claims
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An attorney is subject to discipline for attempting to avoid or limit malpractice liability to a client.
/ A lawyer must not SETTLE a malpractice claim with an unrepresented client without first advising that person in WRITING, to SEEK ADVICE from an independent lawyer about the settlement. |
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Conflicts of Interest/ Former Clients
& Opposing Former Client |
The attorney has a continuing obligation to preserve information gained in confidence during the representation.
Opposing Client: When a former client has imparted confidential info, the lawyer must not then oppose the former client in ANY manner in which the the confidential info would be RELEVANT. CA Rules --> Require WRITTEN CONSENT of the client after full disclosure of the conflict. (informed written consent) |
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Attorney-Client Privilege
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The A-C privilege prohibits a court from compelling the revelation of confidential communications between an attorney and a client.
Corporation Client: Privilege covers communications b/w the corp and a high-ranking official. Holder of Privilege: Only the Client may waive the privilege. Exceptions: privilege does not apply if the client seeks attorney's services to enable or aid anyone to commit future crime/fraud. |
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Lawyer's duty of Confidentiality
Exception: Future Crime or Fraud |
Lawyer owes an ETHICAL DUTY to preserve client's confidences obtained during the course of the A-C relationship.
Exception: Future Crime or Fraud--> ABA Model Code- an atty MAY reveal client's confidentially expressed intention to commit ANY future crime. ABA Model Rules- only future crimes likely to cause imminent death or substantial bodily injury. CA- (same as ABAMR) (CA=NO financial exception) |
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Lawyer Advertising
(Candor to Public/Dignity to Profession) |
Traditionally, professional ethics rules banned lawyer advertising.
However, the Supr Ct recognized L advertising as COMMERCIAL SPEECH protected by the 1st and 14th amendments and held that a state may not flatly prohibit lawyer advertising unless it is false/misleading. |
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Loans/Advances to Clients
(Duty of Loyalty- conflicts with clients) |
Under ABA, a L is subject to discipline for rendering financial assistance to a prospective client if the amounts advanced exceed COURT COSTS and LITIGATION EXPENSES.
Although CA rules specifically forbid a L from paying the personal or business expenses of a prospective client, the L may lend $ to the client for ANY PURPOSE if the client promises in WRITING to REPAY the L. CA also permits the L to lend the client $ to cover reas costs of litigation. |
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Letters Soliciting Clients
(Truthful non-deceptive letters, unless knows person doesn't want) |
Although a L must not seek fee-paying work by initiating a live telephone , personal, or electronic contact, L is not prohibited from sending TRUTHFUL NON-DECEPTIVE LETTERS letters to persons known to face a specific legal problem.
Where the content of the letters is truthful, L's are not subject to discipline UNLESS the L knows (actual) that any person to receive the letters did not wish to be communicated with. Ex: Letter to automobile accident victims are okay if they only inform the reader the firm is available for consultation about legal rights. Not too intrusive. |
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Suppressing Evidence
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A L must not alter, destroy, or conceal evidence.
ex: Suggesting not to wear a ring so that the suspect's appearance is less incriminating is not misconduct if L does no know for sure whether the ring worn by the person who committed the crime was the ring worn by client. |
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Falsifying Evidence
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A lawyer must not falsify evidence.
An affirmative misrepresentation of a material fact would be to falsify evidence. ex: L's advice to wear a different ring to hide the mark left by an old ring that may have been a mark of the criminal's suspected ring might be a material falsification. (ie, asking a client to misrepresent a non-testimonial fact) Turns on lawyer's INTENT, did the lawyer intend to destroy or conceal evidence? |
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Duty of Diligence
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An attorney must act on behalf of a client with reas diligence and promptness and must see the matter through to completion.
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Cutting off Services
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A L should not make a fee agreement that could result in curtailing services in the middle of the relationship.
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Permissive Withdrawal
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Attorney MAY withdraw from representing client if it can be done without material harm to the client.
An attorney who withdraws from a matter must take reas steps to protect the client's interest and must give the client reas notice of the withdrawal. By threating not to perform services, an attorney places a client at an unfair bargaining advantage. Attorney should tell client he has no choice but to withdraw and she should seek separate counsel (do not threaten if client does not pay). |
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Propriety Interest in Cause of Axn
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A L must not have a proprietary interest in the cause of action or subject matter of the litigation.
However, a L may contract w/ a client for a reas contingent fee in a civil case. |
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Fee Must be Reasonable
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An attorney's fees must be reasonable (CA). Unconscionable fees are prohibited (ABA).
Ex: By seeking 25% of ppy settlement in addition to the regular fees, the overall compensation is unreasonable and unconscionable. Atty will be subject to discipline for charging an unreasonable fee. |
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Contingency Fees in Domestic Relations Cases
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ABA PROHIBITS contingency fees in domestic relations cases, but the CA rules only bars contingency fees if agreement ENCOURAGES BREAKUP of an otherwise savable marriage.
EX: Where H&W are already engaged in divorce proceedings, contingency fees are proper |
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L's duties concerning Withdrawal
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An atty who withdraws must return all papers and ppy to which the client is entitled, and cannot refuse to return the client's file to compel the client to pay outstanding fees, or he will be subject to discipline.
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Contracting to Limit Malpractice Liab. / Settling Malpractice Claims
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An atty is subject to discipline for attempting to avoid or limit malpractice liability to a client. Any such agreement VOID as against public policy.
A L must not settle a malpractice claim with an unrepresented client without first advising the person, in WRITING to SEEK ADVICE from an indep lawyer about the settlement. |
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Conflicts of Interest / Former Clients
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The attorney has a continuing obligation to preserve information gained in confidence during the representation.
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Opposing Former Client
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When a former client has imparted confidential info, the L must not then oppose the former client in ANY MATTER in which the confidential info would be relevant.
CA rules require written consent f the client after full disclosure of the conflict. Thus, if attorney has received confidential information from his prior representation of husband, he cannot continue to represent W and must withdraw. |
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Duty of Loyalty / Conflict of Interest
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A L owes her client a duty of loyalty, and must exercise her professional judgment solely for the benefit of her client, free of compromising influences and loyalties.
A L must not rep a client if to do so would adversely affect the interest of another client UNLESS the law REAS BELIEVES the rep will not adversely affect the relationship with the other client and each client CONSENTS after consultation. |
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Direct Conflicts
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When L obtains info that directly conflicts with interests of her current client, she must not represent the person who gave the incriminating info nor a person who the incriminating info was about.
Ex: Because officer conveyed info which directly revealed an ongoing harm to L's client Bank, and that itself was privileged, L must withdraw from representing Bank b/c her duty of loyalty to Bank would be stifled by her knowledge of the improper activities of the Bank and Officer. Thus, L may not rep any party in this matter and must immediately withdraw, unless parties consent. |
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Ethical Duty of Confidentiality
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Under ABA code, a L owes an ethical duty to preserve a client confidences protected by the A-C privilege and any info that the client has asked to be kept confidential or which might harm the client if disclosed.
The ABA model rules broadens this duty by holding that all information that relates to the representation of a client is protected. CA has no such rules, but instead has an oath to "maintain inviolate the confidence and at every peril to himself or herself to preserve the secrets, of his or her client." A L owes an ethical duty not to disclose any of the communications regarding their conversation. |
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Duty of Confidentiality
Exception: Future Crime or Fraud |
The ethical duty of confidentiality may prevent disclosure of an intended future crime or fraud.
Under ABA Model Code, an atty may reveal a client's intention to commit any future crime. Some jdxs allow disclosure to prevent or rectify substantial financial loss to a person if a client its using or has used the lawyer's services to commit the crime or fraud. ABA exception only applies to future crimes likely to cause imminent death or substantial bodily injury, and the atty MAY reveal info necessary to prevent the client from committing the crime. |
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Future Crime/Fraud (CA)
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CA law is now in accord with the ABA model rules. A L may reveal confidential info relating the rep of a client to the extent that the L reas believes the disclosure is necessary to prevent a criminal act that is likely to result in death or subst body harm.
Under ABA and CA rules, disclosure is discretionary. CA has no exception for substantial financial loss. |
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A-C Privilege V. Confidentiality
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The A-C privilege is an exclusionary rule of evidence law. It prohibits a court or other govt tribunal from compelling the revelation of confidential communications b/w an attorney and a client.
In contrast, the Duty of Confidentiality prohibits an attorney from voluntarily revealing info relating to the rep of a client. |
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A-C Privilege
Exception: Future Crime/Fraud |
Under ABA and CA rules, the A-C privilege does not apply i the client seeks the atty's services to enable or aid anyone in committing a future crime or fraud.
Furthermore, CA makes the A-C privilege inapplicable if the atty reas believe that the disclosure of the confidence is necessary to prevent the client from committing a crime that is likely to result in death or substantial bodily injury. Past fraud may not be revealed, however, if the fraud is continuing or ongoing, the court can compel the L to person who committed the fraud to testify. |
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Exception: Past Frauds involving L's Services
"Noisy Withdrawal" |
Where a L learns that her client HAS USED her services to financially injure a 3rd party, the L MUST WITHDRAW from representing the client in any future work.
The lawyer MAY REVEAL enough of the client's confidential info to prevent the injury or rectify or mitigate it. He MUST REVEAL IF doing so is the only way the L can avoid assisting the client's crime/fraud. The L may make a "NOISY WITHDRAWAL" which allows the L to inform the pty defrauded that she is withdrawing and no longer stands behind the financial matters she helped to prepare. -- CA rules DO NOT PERMIT disclosure. A CA L should 1) urge the client to reveal fraud, 2) withdraw if client refuses and 3) not notify the defrauded party in any manner likely to harm her client. |
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Solicitation:
Targeted Direct Mail |
A L must not solicit business by initiating personal or live contact w/ a prospective client with whom the L has no prior professional relationship.
However, a L may send prospective clients TRUTHFUL NON-DECEPTIVE letters if they are facing a specific legal problem. |
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Duty of Loyalty - Conflicting Interests (C/C)
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A L cannot represent 2 clients with conflicting interests unless the L believes that the rep will not adversely affect the rights of the other client, and each client consents that representation after consultation.
The initial rep may be proper when NO ACTUAL CONFLICT exists, however, once the L knows of the conflict, she must assess it and ADVISE EACH client of ANY actual or potential conflict. Failure to disclose a conflict subjects a L to discipline. Even with consent, however, L SHOULD DECLINE to represent when a DISINTERESTED L would conclude that representing one client would conflict w/ representing the other. |
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Duty to Communicate
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The L must furnish all the info necessary to allow the client to make intelligent decisions in the case, and to communicate with the client.
Ex: Having one client translate for another client with a conflicting interest would put the client in a compromising position. L should hire an independent translator with no interest in the outcome of the suit to avoid such a conflict of interest. |
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Attorney's Fees
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An attorney's fees should not be unreasonable or unconscionable (CA).
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Contingency Fees
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Contingency Fees are permitted, but the agreement must be in WRITING and include:
1) how the fee is CALCULATED 2) how COSTS will be handled, and Under CA rules, 3) how the client will be charged for OTHER related WORK, and 4) a statement that the attorney's fees are NOT SET by law (are negotiable) CA Law allows for 40% contingency fee for first $50,000 recovered. |
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Fee Splitting with NonLawyers
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A lawyer must NOT Share her fees with a nonlawyer.
The purpose of this rule is to protect the L's independence of judgment. |
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Fee Splitting with Lawyers
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Under CA rules, fee-splitting between L's is allowed provided that the CLIENT AGREES after full DISCLOSURE of the fee splitting agreement, the TOTAL FEE is NOT INCREASED b/c of the split, and the fee itself is not unconscionably high.
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Potential Conflicts b/w L/C:
Sexual Relationships |
An atty must not have a sexual relationship with his or her client even if consensual and client is not harmed (ABA).
CA's rule is much narrower, and does not allow for sexual relations with a client under limited circ's: - where L asks for sex for rep (pmt) - by coercion or undue influence - L incompetently reps bc of sex Where a sexual relationship comprises a L's rep of another client, L may be subject to discipline. |
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Gifts from a CLient
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A L may accept a gift from a client if the gift meets general standards of fairness.
Acceptance of a gift while case is still pending is not per-se improper. |
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Duty to Communicate
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A L must keep a client reasonably informed about significant developments in a case.
A decision to accept settlement is a critical decision that must be left to the client. Under CA rules, a written settlement offer in a non-criminal matter must be conveyed to the client. Failure to communicate it to one client but not to the other is grounds for discipline. |
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Co-Parties with a present, Actual Conflict of interest
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A L must not rep 2 parties on the SAME SIDE of a case if a disinterested lawyer would conclude that they should not consent because of a present, actual conflict between their interests.
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Conflict of Interests - Duty of Loyalty
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A L owes her client a duty of loyalty, and must exercise her professional judgment solely for the benefit of the client, free of compromising influences and loyalties.
A L must NOT REPRESENT a client if the rep creates a CONCURRENT conflict of interest. A concurrent conflict of interest exists when: 1) the rep of the client will be DIRECTLY ADVERSE to ANOTHER CLIENT'S INTEREST, or 2) there is a SIGNIFICANT RISK that the rep of a client will be MATERIALLY LIMITED by the interests of another client. Further, each client must CONSENT after consultation. |
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Use of Confidential Info to Client's Disadvantage
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Cannot use confidential info gained from one client to the disadvantage of another.
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Duty to Communicate
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A L must keep the client REASONABLY INFORMED about significant developments in a case and has a duty to convey the offer in a criminal case (inform your client of offers for pleas, settlement.
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Scope or Representation
Client decides... Lawyer decides.... |
Client MUST make the key decisions that affect the client's Substantial legal rights.
Lawyer decides legal and procedural strategy. |
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Ineffective Assistance of Counsel (Crim Pro)
6th Am Right to Effective Counsel |
The 6th Am right to counsel includes effective assistance of counsel.
A failure by a L to inform her client of a plea offer may constitute incompetency of counsel. An atty is incompetent if her conduct falls measurably BELOW the performance ordinarily expected of FALLIBLE LAWYERS and AFFECTS THE OUTCOME of the trial. |
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Compensation from a 3rd Person
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A lawyer must not accept compensation from a 3rd person for representing a client where to do so would interfere with the L's representation of that client.
Unless, - the client consents after consultation, - 3rd person doesn't interfere w/the rep or L's independence, and - the arrangement doesn't compromise client;s confidential communication. |
