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83 Cards in this Set
- Front
- Back
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Then Ten Categories Covered
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1) Conflicts of Interest
2) Confidentiality 3) Information about Legal Services 4) Advocacy 5) Competence 6) Fees 7) Trust Account Rules 8) Withdrawal 9) Unauthorized and Multijurisdictional practice 10) Admission to practice |
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General Themes of PR
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A. Confidentiality (essence of being a lawyer)
B. Loyalty (essence of being a lawyer) – duty to act on behalf of the client’s best interest. Primarily related to COI C. Informed Consent (solution to ethical dilemmas) – usually ethical problem can be resolved through this. It must explain material risks and availably of alternatives. Must be signed by the person giving the consent or a writing the lawyer properly transmits to the person confirming oral informed consent D. Withdrawal (solution to ethical dilemmas) – Make sure reasonable steps are taken to protect interest of client |
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Conflict of Interest - Key test
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test to whether L can provide comp. and diligent rep. is whether rep. would be materially limited because of L’s other responsibilities or interests
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COI: Concurrent COI
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Lawyer shall not represent a client if it involves a concurrent COI
1. Where representation of 1 client would be directly adverse to another representation. 2. significant risk that rep. will be materially limited by responsibility towards a client or former client, third party (prosp. Clients or those paying bills), or personal interests of atty. |
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COI: When representation permitted
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Reasonable belief that L can provide competent and diligent rep. to each client
2. Rep. not prohibited by law 3. Clients don’t have claims against each other in same litigation or other tribunal AND 4. Each client gives informed written consent |
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COI: When representation NOT permitted
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If clients are in the same proceeding, prohibited by law, OR if the conflict is such that no reasonable lawyer would seek consent
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COI: Potential Conflicts
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Where interests of two clients, former client, third person, or personal interest of L are not adverse yet, but could become so. Need IWC from each affected client in order to proceed. Two Factors
1. Significant risk or likelihood the conflict will occur, AND 2. Whether the rep. would be materially limited because L’s other responsibilities. |
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COI: Who is the client?
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If Org. or entity – must seek out designated rep
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COI: Withdrawal
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– If a COI arises after rep. starts, L usually must withdraw unless
IWC |
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COI: Former clients
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L can’t rep. another person in same or substantially related matter that’s adverse to former client unless IWC
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COI: Specific Rules: There are 11 of them, list them. The last 2 only apply to the lawyer not the whole firm
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Business transaction with client
Information gained through representation Gifts Media Rights Financial Assistance Payment from a third person Aggregate settlement and pleas limiting civil liabilities Proprietary Interests Sexual Relations with Client Related Lawyers |
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COI: Specific Rules - Business Transaction with Client
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must be 1) fair and reasonable, 2) disclosed in writing, 3) advise client to seek independent counsel, 4) reasonable amount of time to do so, AND 5) IWC
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COI: Specific Rules - Information Gained through Representation
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May never use for detriment, except as permitted or required by RPCs
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COI: Specific Rules - Gifts
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L shall not solicit substantial gift, or prepare instrument giving L one unless L is related to person (close familial relationship). WA disapproves of L drafting doc where L is named trustee or personal rep where there is possibility of substantial fees
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COI: Specific Rules - Media Rights
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Can’t make agreement prior to conclusion of rep. of client
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COI: Specific Rules - Financial Assistance
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no advance of $ except lit. costs – MUST BE REPAID except for class action or indigent client
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COI: Specific Rules - Payment to Third Person
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L shall not accept unless 1) IWC, 2) L’s ind. Judgment not compromised , AND 4) info related to rep. protected
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COI: Specific Rules - Aggregate Settlement and Pleas
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Each party must give IWC, to be IC each client must know what the other is getting
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COI: Specific Rules - Limiting Civil Liability
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Can’t prospectively limit malpractice liability unless
client independently represented in making agreement. L shall not settle malpractice claim w/ client before first advising them to seek independent counsel |
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COI: Specific Rules - Proprietary Interest
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cannot acquire for matter L is involved in. May acquire lein to secure fees, and K with client for contingent fee in civil case
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COI: Specific Rules - Sexual Relationship with client
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unless relationship existed before rep. Only bars atty, not firm
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COI: Specific Rules - Related Lawyers
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L can’t rep. client in matter directly adverse to a client rep. by a related lawyer, unless client gives informed consent and the rep. is not a concurrent COI.
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COI: Imputed Disqualification for some COIs
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general rule is that if one L in a firm is disqualified, the entire firm is for purposes of current and former clients. There is one exception if the prohibition is based on personal interest and wouldn’t materially limit rep. Firms have to take reasonable steps to see if there is a conf
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COI: Changing Practice Settings - Terminating with a firm
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F allowed to rep. clients adverse to those clients that left with L. Not allowed to if an L remains that has confidential info and it is the same or substantially related matter.
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COI: Changing Practice Settings - Joining a firm
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can’t rep a client that may be adverse to former client (if same or substantially related matter or has confidential information) unless
i. Dq’ed L is screened and gets no part of fee ii. Former clients of dq’ed L receive notice of conflict and screening mech iii. Firm shows that no info relating to former rep. was transmitted by dq’ed L |
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COI: Changing Practice Settings - Special rules for gov. personnel
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no rep. of client in matter that L participated personally and substantially while in gov unless IWC of gov or screening done. Also, L with conf. gov. info about a person may not rep a client with interests adverse. May be able to get rid of with screening
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COI: Changing Practice Settings - Negotiating for Employment
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A gov. employee can’t negotiate for private employment in matter where L participating personally and substantially. Unless it’s a law clerk and judicial officer given notice
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COI: Judge or Third Party Neutral
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shall not rep. client in any matter which L participated personally and substantially as a judge or arbiter., etc. unless IWC of all parties. If participated as TPN can rep if L is screened and written notice provided
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COI: Prospective Clients
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can’t reveal any info learned during consultation, even if no relationship. Can’t rep client w/ material adverse interests to PC in same or sub. Related matter if info L received could significantly harm PC. F will also be banned unless L took reasonable measures to avoid receiving more info and L is screened off the case and receives no fees. L could still rep. if IWC of both parties
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COI: Third party neutral
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if L acting as TPN must inform parties that he is not rep. them.
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COI: Organization as Client
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rep org, not ee’s. L must act in best interest of org. and may report up if subst. injury to org. if higher up doesn’t work L may reveal conf. info. If fired, L shall (MUST) proceed in a way necessary to assure org’s highest autority is informed of L’s discharge or withdrawal. L must explain to ee’s that he represents org, not ee’s. L may rep ee’s so long as there is no conflict between org and ee.
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COI: Government as Client
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only rep. unit assigned to unless otherwise provided in writing. Gov. lawyer rep. the broader gov. unity.
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Confidentiality: Basic Rule
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L shall not reveal info relating to rep. unless IWC, it is impliedly authorized, OR permitted by RPCs
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Confidentiality: Exceptions to Confidentiality
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Exceptions to Confidentiality
1. Death or Substantial Bodily Injury – Mandatory (all others are permissive) May reveal 2. Future Crime 3. Preventing, Mitigating, and Rectifying Crime or Fraud when the Lawyer’s Services Were Used. 4. To Secure Legal Advice 5. Protect the Lawyer 6. Court Order 7. Breach by Court Appointed Fiduciary |
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Confidentiality: Implied Authority
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Implied Authority to disclose CI to carry out representation unless client gives instructions to the contrary
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Confidentiality: Time Limits
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prior to and subsequent to client-lawyer relationship – even if no relationship established
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Confidentiality: Use by Other Persons
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Can share with other members of firms unless client says otherwise, for limited administrative purposes (like accounting), and for evaluation purposes for use by a third party (for this one, if L should know that eval likely to effect clients interest, materially adversely, he must get IWC)
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Confidentiality: Physical Evidence
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Knowledge protected by duty, possession of physical evidence is not (must turn over weapon if D gives it to you)
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Confidentiality: Client perjury
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– L can’t offer evidence he knows to be false. If L learns evidence is false, he must reveal to tribunal unless prohibited by the RPCs. If prohibited by RPC, L must take reasonable steps to obtain client consent to the disclosure, if client refuses, L may withdraw.
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Confidentiality: Supervisory and Subordinate Duties and Liabilities
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Sup shall make reasonable efforts to ensure L’s (or non-L’s) follow RCP. An L is responsible for another L’s violation if he orders or ratifies the conduct or knows of the conduct when its consequences can be avoided or mitigated but fails to take reasonable remedial action. L doesn’t violate RCP where he acts in accordance with sup’s arguable question of professional duty.
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Info About Legal Services:
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No False or Misleading Statements about L’s services. No statements about quality even if objectively true. If ad leads reasonable person to form unjustified expectation then ad is false and misleading
B. No statements about Specialization (except for patent, trademark, admiralty). May say that your practice is limited to _______, or an emphasis in ______. Cannot make statements about ability to influence court or public body. Letterhead must have admitted J of L on it. C. Trade names allowed, but must not be misleading. Names of dead or retired partners allowed, name of public official not allowed unless they are an active member |
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Info About Legal Services: Solicitation
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Direct Mail and targeted mailings allowed
2. No in person solicitation, or telephone, or email allowed unless preexisting Relationship 3. No paid solicitation except for bonified ad firms or prepaid plans |
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Info About Legal Services: Purchase of law practice
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Purchase allowed if
1. entire practice or practice group is being sold 2. Seller must give clients notice of proposed sale 3. Notice must include stmt that client has right to obtain other counsel. Transfer presumed if client doesn’t object in 90 days fee to the client can’t increase because of sale |
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Info About Legal Services: Non-compete agreements
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Not allowed except for provisions relating to retirement benefits from a firm, prohibition related to the sale of law practice, or criminal or disciplinary agreement or stipulation
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Advocacy - Basic Rule
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L must do everything within the bounds of law and RPC to advance clients cause, including expedite litigation
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Advocacy: Zealous advocate
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Being a zealous advocate does not include bringing frivolous or claims brought solely to harass or injure
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Advocacy: Candor towards tribunal and adverse legal authority
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Can’t knowingly make false statements of law or fact. Must correct if known false statements. Must make reasonable diligent inquires to obtain truth. L must reveal controlling authority even if adverse. No duty to reveal adverse facts unless proper discovery request
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Advocacy: Prosecutor Special Responsibilities
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duty to seek justice, not convict. must not prosecute someone unless probable cause. Must advise to seek counsel. Must disclose any info that tends to mitigate finding of guilt. Must avoid extrajudicial statements that may jeopardize proceedings
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Advocacy: Impermissible Conduct in Litigation
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obstructing evidence, falsifying evidence, make frivolous discovery requests, provide personal opinions, make ex parte contact. Factual witnesses can only be paid reasonable expenses
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Advocacy: Lawyer as witness
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Cant be advocate in trial where likely to be a necessary witness. If L has to testify other lawyer at firm may advocate unless impermissible conflict with current or former client
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Advocacy: Extra-judicial statements
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cant make improper ones to the media. May make statement a reasonable lawyer would to protect client from undue prejudice. Also may say that he has been retained, that client denies guilt, housekeeping, ask for help
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Advocacy: nonadjudicative proceedings
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must reveal capacity of representation
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Advocacy: Dealing with Third Persons
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can’t knowingly make false statements of material fact or
law. Duty to correct false info unless disclosure prohibited by RPC |
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Advocacy: Encouragement of Pro-Bono
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– accept cases and do 30 hours annually
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Competence: Basic Rule
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Cant take case not comp. to handle but can take case he can become comp. in w/o undue delay or expense
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Competence: Association with other counsel
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may do if IWC and total fee is reasonable
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Competence: Emergencies
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in emergencies L may give advice in area not comp. in. Should be limited
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Competence: Scope of Representation
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client makes decisions affecting substance (including
settlement), L is entitled to make tactical decisions |
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Competence: Diligence
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duty to expedite litigation and act in a timely manner and not neglect cases
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Competence: Communication
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duty to keep client reasonably informed
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Competence: Client Under Disability
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– L must maintain as reasonably possible a normal attorney
client relationship. Guardian may be appointed if client cant act in own best interest |
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Fees: Reasonableness
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Total Fee Reasonable
B. Factors of Reasonableness: time & labor, difficulty, skill required, likelihood L employment would be hindered, fees customarily charged, amount involved and results obtained, time limitations imposed by client, experience and reputation, whether the fee is fixed or contingent |
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Fees: Splitting Fees
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– w/ non-lawyers not allowed, has to be proportional to work if split with L outside of firm, client must give IWC and total fees must be reasonable. IC means client must know what all Ls are being paid.
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Fees: Contingency Fees
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must be in writing, not allowed for criminal or dissolution. May be used for post dissolution. Must specify gross or net, must provide written accounting. C has right to court review of fee
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Fees: Retainer
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Retainer is a fee that a client pays to a lawyer to be available during a specified period of time or on a specific matter, in addition to and apart from any compensation for legal services performed. Must be in writing
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Fees: Flat Fees
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must be in writing, constitutes complete payment paid in whole or in part in
Advance. Must include: scope of services, total amount of fee and terms of payment, won’t be placed in trust, doesn’t alter C’s ability to terminate relationship. C may be entitled to refund. If dispute arises L shall take reasonable and prompt action to resolve |
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Trust accounts: Basic Rule
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No commingling of funds
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Trust Accounts: Duties regarding property of others
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must keep client informed of funds.
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Trust Account Requirements and interests
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must bear interest for IOLTA (if short time or
small amount of money), or for client. There also must be deposit insurance |
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Trust Account Record Keeping
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must be accurate and up to date. May be disciplined
even if no funds are missing |
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Trust Account: Audits and overdrafts
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WSBA does spot audits on trust accounts. WSBA must be
notified if an overdraft |
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Trust Accounts: Client Property other than money
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must be identified, a receipt given, and placed in a save place. Must be returned to client when requested. Files (except work product) must be turned over even if bill has not been paid. Can’t charge for copies unless put into initial agreement.
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Trust Account: attorney liens
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applied only in specific cases, really doesn’t do anything unless you are involved in a case where client could get money
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Terminating Representation: Basic rule
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If in litigation, permission from tribunal must be obtained
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Terminating Representation: Procedure
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State Ct. requires intent to withdraw w/ 10 days notice. If no objection it is automatically effective. Fed Ct. always requires a motion and order. Reasonable steps must be taken to avoid prejudice to client.
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Terminating Representation: Protecting the client and unearned fees
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– unearned fees must be refunded to the client.
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Terminating Representation: Mandatory
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required when L is discharged, Continued rep would be a violation of RPC,
or L’s physical and mental conditon unreasonably impairs his ability to represent Client |
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Terminating Representation: Permissive
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1. No material adverse effect on interest of client
2. client persists in criminal or fraudulent conduct that involves L’s services 3. L’s services used to perpetrate a crime or fraud 4. L considers client’s acts repugnant 5. C doesn’t pay or fails to fulfill an obligation to the L and warnings were given 6. representation is unduly burdensome OR 7. good cause – any other valid reason |
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Unauthorized and Multijurisdictional Practice
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Aiding Unauthorized Practice/Disbarred Lawyers – Can’t do it
B. Multijurisdictional Practice – cant do it if not admitted here. May do some legal services if on a temporary basis AND in association with an admitted Washington lawyer. Also if it is reasonable related to case in other J. OR related to a pending ADR proceeding, or reasonably related to the lawyer’s practice in the J where L is admitted. Also Pro Hac Vice |
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Admission to practice
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General Requirements for Admission – Graduate of ABA approved law school, Graduate of WSBA clerkship program, through reciprocity, and be of good moral character.
B. Reciprocity |
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Other Ethical Requirements
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A. Pay to Play Prohibited - shall not accept gov. engagement for political contributions
B. Broad Definition of Misconduct C. Discrimination - can't commit a discriminatory act prohibited by law (anywhere in WA) where the act is committed in connection with the lawyer's professional activities D. Should Report Professional Misconduct of judges and attorneys to WSBA but don't have to. |
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Judicial Ethics
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When you do not know the judicial rules, apply the lawyer rules.
Disqualification Required when impartiality can reasonably be questioned (by personal bias, knowledge of facts, financial interests, serving as lawyer or witness) B. must avoid Impropriety and the Appearance of Impropriety (no ex parte contact, no gifts except from close family, only limited public comment, no court experts without notice to parties and right to repsond, no use of confidential info obtained as lawyers while on bench, limited ability to act as fiduciary except for family) C. Campaigning and Partisan Activity – Cant make pledges or promises on how to rule in a Case. No solicitation of campaign donations D. May promote Causes Related to the Administration of Justice. Except if it would be construed as an abuse of office. E. Should Report Lawyer and Judicial Misconduct |
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Test Tips
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when the lawyer has acted appropriately, still mention the issue
- if you could characterize conduct in more than one way, do so - if judge appears in fact pattern, comment on both the judge’s and the lawyers conduct |
