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72 Cards in this Set
- Front
- Back
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CONCURRENT CONFLICT OF INTEREST
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A lawyer shall not represent a client if the representation involves a concurrent conflict of interest.
• The representation of one client will be directly adverse to another representation, or • There is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to another client, a former client, a third party or by the personal interest of the lawyer. |
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When can an attorney represent despite Concurrent Conflict
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• The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client,
• The representation is not prohibited by law, • Does not involves clients in the same litigation or other proceedings, • And, each affected client gives informed consent, confirmed in writing |
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Potential Conflict of interest
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Are not adverse yet but could become so,
• The significant risk or likelihood the conflict will occurs, and • Whether the representation would be materially limited because of the lawyer’s other responsibilities. Lawyer must obtain from each affected client informed written consent • Have to disclose information (watch out for confidential info) • Tell clients what will happen if one arises (withdraw) |
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What happens if there is a conflict?
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The lawyer must withdraw from representation if a conflict arises, unless the lawyer gets informed consent.
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Conflicts with Former Clients
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A lawyer who has formerly represented a client shall not represent another person in the same or substantially related matter that is adverse to the former client unless the former client gives informed written consent.
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Special Rules COI
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BIG MF SPLATR:
Business Transactions Information Gained through representation Gifts Media Rights Financial Assistance Sex Proprietary interests Limiting liability Aggregate Settlements/pleas Third Party Payments Related Lawyers |
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Business Transaction with a Client
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For a lawyer to engage in a business transaction with a client or knowingly take a pecuniary interest adverse to a client, the transaction must be
• Fair and Reasonable & Fully disclosed in writing • Client advised in writing to seek counsel & given time to do so • And the client gives informed written consent. |
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Information gained through representation
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A lawyer may never use confidential information to the disadvantage of the former client, except as permitted or required by the RPC.
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Gift
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A lawyer shall not solicit a substantial gift, or prepare an instrument giving the lawyer one, unless the lawyer is related to the donor.
• Related if the lawyer maintains a close familial relationship. WA disapproves of drafting an instrument where lawyer is named trustee/personal representation and possibility of getting substantial fees. |
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Media Rights
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Prior to end of representation, a lawyers shall not make/negotiation an agreement giving the lawyer literary or media rights.
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Financial Assistance
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A lawyer shall not advance or guarantee money to the client, except costs of litigation may be advanced, the repayment cannot be contingent on the outcome except for class actions.
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Third Party Payments
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A lawyer shall not accept compensation from a third party unless,
• The client gives informed consent • The lawyer’s independent judgment is not compromised, and • Information relating the representation is protected. |
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Aggregate settlement/pleas
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Shall not participate in making aggregate settlements, or pleas unless each client gives informed written consent. (Must say what each is getting).
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Limiting liability
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A lawyer shall not prospectively limit her malpractice liability unless the client is independently represented in making the agreement.
• Cannot settle a claim/potential claim unless client advised in writing that he should seek independent counsel and given reasonable time to |
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Proprietary interest
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A lawyer shall not acquire a proprietary interest in a manner in which the lawyer is involved but may (1) Acquire a lien to secure the lawyer’s fees or expenses and (2) Contract with a client for a reasonable contingent fee.
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Sex
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A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the A/C relationship commenced.
A lawyer shall not have sexual relations with a representative of a client if the relationship would, or could, prejudice the representation. |
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Related Lawyers
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A lawyer shall not represent a client in a matter directly adverse to a client represented by a related lawyer, unless the client gives written informed consent and the representation is not a concurrent conflict of interest.
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Imputed Conflicts
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No lawyer in a firm shall knowingly represent a client, if any are prohibited, unless based upon a personal interest and doesn’t present a significant risk of materially limiting the representation. (applies to non-lawyers)
• Lawyers and firms have an obligation to take reasonable steps to determine whether a conflict could or does exist. |
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Effect of Lawyer termination
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A firm is generally allowed to represent clients adverse to those clients who left with the departing lawyer, UNLESS:
• The client has interests materially adverse, it is in the same or substantially related matter and a lawyer remains with confidential info. |
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Association with new firm
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No other lawyers shall knowingly represent a person in a matter in which the lawyer is disqualified relating to former clients unless
• Disqualified lawyer is screened and is apportioned no part of the fee • Former client receive notice of conflict and screening mechanism • Firm demonstrates no information has been transmitted by the lawyer |
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Representation of private clients after gov employment
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A lawyer shall not represent a client in a matter in which the lawyer participated personally and substantially while in government unless the appropriate agency gives its informed written consent.
• Firm may if: disqualified lawyer screened, and agency is given notice. |
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Use of confidential government info
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A lawyer having confidential government information (anything unobtainable under Public Records Act), acquired while acting as a public officer or employee, may not represent a private client
• whose interest are adverse to that person • and the info could be used to the person’s material disadvantage. Firm can represent if the former gov employee is screened. |
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Government service after private service
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A lawyer currently serving as a public officer is subject to the COI rules for current and former clients. Shall not participate in a matter the lawyer participated personally and substantially while in private practice, unless the appropriate government agency gives its informed written consent.
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Gov employee negotiating for private employment
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Shall not negotiate for private employment in a matter in which the lawyer is participating personally and substantially. Law clerk may negotiate after giving judicial officer notice.
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Former Judge/3rd party neutral
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Shall not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, other adjudicative officer, arbitrator, or mediator, unless all parties give informed written consent.
• Firm may undertake representation only if (1) lawyer is timely screened and (2) written notice is provided. |
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Prospective clients
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A prospective client is a person who discusses the possibility of forming a client-lawyer relationship.
Confidentiality Even when no client-lawyer relationship ensues, a lawyer shall not use or reveal information learned during the consultation. Conflict of Interest A lawyer shall not represent a client with interest materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information that could be significantly harmful. • Firm can represent if the lawyer took reasonable measures to avoid receiving more information and the lawyer is screened, receives no fees and the client receives written notice. Lawyer can undertake if both the affected client and the prospective client have given informed written consent. Lawyer may condition communication with a prospective client (IC) |
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Third party neutral disclosure requirements
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Must inform unrepresented parties that the lawyer is not representing them
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Organization as client
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The Lawyer represents the entity as a whole. Loyalty is to the company, not employee, should make clear (MUST if employee is adverse)
• Private lawyer working in gov represents particular unit. Gov lawyer represents the broader gov unit. If lawyer knows an officer/employee violates a legal duty to the org., or the law and may substantially injure the org., the lawyer shall proceed in the best interest of the org., and may refer it to a higher authority. • If no action, may reveal confidential info if the lawyer reasonably believes the violation is reasonably certain to result in substantial injury • If fired, shall proceed as he believes necessary to assure the org’s highest authority is informed of the lawyer’s discharge or withdrawal. An attorney can represent employee, if no conflict. If consent required, get from appropriate unaffected official |
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Duty of confidentiality
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A lawyer shall not reveal information relating to the representation of the client unless IC, impliedly authorized, or permitted by the RPCS
• Lawyer implied authority to disclose to carry out representation. • Shall not use information to the detriment of a former client, or for the lawyer’s own purposes without IC. |
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Exceptions to confidentiality
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To the extent the lawyer reasonably believes necessary:
• To prevent certain death or substantially bodily harm (Mandatory) • To prevent the client from committing a crime • To prevent, mitigate, or rectify substantial injury to the financial or property interest of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud where the client has used the lawyer’s services • To secure legal advice about compliance with RPC • To protect a lawyer (claim or defense) • Required by a court order • Client is serving as a court appointed fiduciary and breached duty |
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Use of confidential info by other people
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• can use with other firm members, administrative purposes, and evaluations for use by third parties if not likely to materially and substantially affect clients interest (if so, need IC)).
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Physical evidence
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• Knowledge is protected, possession is not. Must turn it over while protecting he client’s identity.
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Client Perjury
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• Lawyer shall not offer evidence the lawyer knows if false. If the lawyer learns evidence is false, the lawyer shall reveal the fact unless prohibited by the RPC. If prohibited, the lawyer shall take reasonable steps to obtain client consent. If client refuses, can withdraw.
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Supervisory lawyers
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• Supervisor must make reasonable efforts to ensure RPC compliance
• Direct supervisors shall take reasonable steps to ensure subordinate complies with RPC • Liability imputed (subordinate & non-legal) if supervisor orders conduct, with specific knowledge ratifies conduct, or knows of conduct when its consequences can be avoided or mitigated but fails to reasonably remediate • Subordinates shall always abide by RPCs, but does not violate RPCs by acting in accordance with supervisor's reasonable resolution of an arguable question of professional duty. • Non-lawyer assistants (reasonable efforts to ensure compliance) |
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Information about legal servies
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A lawyer shall not make a false or misleading communication about the lawyer’s services
• No statements about quality, even if objectively true • No statement which RP would form an unjustified expectations • No statements about specialization, expect for patent, trademark, and admiralty. Can say practice is limited to an emphasis. o If certified a specialist, must state WA S.C. doesn’t recognize. • No statements about ability to improperly influence court/public body. • Letterhead must designate what jurisdiction admitted in. Trade names are allowed but cannot be misleading. Can include dead or retired partners, not public officials. |
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Solicitation of legal services
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• Direct mail solicitation allowed, even targeted
• In person solicitation, including telephone or real time e-communication is generally prohibited unless pre-existing relationship. • No paid solicitation except for bona fide advertising or prepaid plains. |
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Purchase of legal practice
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• Entire practice or area of practice sold.
• Must give clients notice of the proposed sale, that includes a statement that client has the right to obtain other counsel, and transfer will be presumed if the client does not object within 90 days • The fee to the client shall not be increased due to sale. |
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Noncompete agreements
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Non-compete agreements are not allowed, except relating to sale, retirement benefits or disciplinary agreement/stipulation.
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Advocacy
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A lawyer has a duty to do everything w/in the bound of the law, and RPC to advance client’s interest, but not frivolous claims & to harass or injure
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Candor with the tribunal
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A lawyer must be truthful with the tribunal and
• Must make reasonable diligent inquires to ascertain the truth. • Cannot knowingly make a false statement of law or fact, • Fail to correct a false statement of material fact or law previously made unless prohibited by the RPC. • Lawyer must reveal controlling authority, directly adverse to the position taken. • Cannot submit false evidence • If learns that evidence was wrong, must come forward unless prohibited (also try to convince client....) No duty to reveal facts adverse unless subject to proper discovery or an ex parte proceeding (material facts need to be disclosed). |
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Duty of prosecutors
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• Duty to seek justice, not just convict. Must have probable cause that the person is guilty. Must advise defendant of the need to obtain counsel
• Disclose any information that tends to mitigate guilt • Avoid extrajudicial statements that could prejudice the proceedings. A prosecutor must also exercise reasonable care to prevent persons assiting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making. |
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Fairness to opposing parties
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• Cannot hide witnesses or obstruct access to evidence.
• Falsify evidence or offer testimony lawyer knows to be false. • Frivolous discovery requests. • Can’t make personal opinions or not refer to inadmissible matters • Ex Parte contact with judges/jurors or those represented by counsel. • Fact witnesses can only be paid reasonable expenses |
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Lawyer as witnesses
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Shall not advocate if likely to be a necessary witness. If must be a witness firm may advocate unless conflict with current/former client.
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Extra judicial statements
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A lawyer must not make an improper (likely to substantially prejudice proceedings) extrajudicial statement to the media, unless:
• Reasonable lawyer believes required to protect from undue prejudice. • Can say retained, client denies guilt, housekeeping, and ask for help. |
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Improper Statements about a judge or official
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An atty may not make a false misrepresentation about a public official's
integrity, competence, or public record |
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If representing in front of an admin agency
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Must disclose working in representative capacity if representing a client before an admin agency
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Duties to third parties
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A lawyer shall not knowingly make a false statement of material fact or law.
fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. |
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Dealing with unrepresented parties
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In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. |
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Dealing with represented parties
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Need laywer's consent.
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Pro bono
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Not required but recommended (30 hours)
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Competence
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A lawyer shall not take a matter that he is not competent to handle. Can become competent if without undue delay and expense to the client.
• Can associate with competent lawyer if IC and total fee is reasonable. • Can assist without competence in an emergency. |
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Duties of a lawyer to their clients
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Taking the case is not an endorsement of client's posistion.
Shall not counsel a client to engage, or assist a client, in conduct taht the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of such conduct. • Clients make all decision affecting the substance of the case, including settlement, Lawyers can make tactical decisions. • Informed decisions (Duty to keep client informed) • Expedite litigation (timely manner and not neglect cases, must manage caseload in order to effectively represent all clients) • Disabled clients (maintain as reasonably possible a normal A/C relationship. If lawyer believes client unable to act in his own interest, may seek appointment of a guardian) |
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Fees
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A lawyer shall not charge or collect unreasonable fees or expenses. Factors:
• Time/Labor required, Novelty/difficulty of the questions and issues • Skill required, Likelihood it will preclude other employment. • Fee customarily charged, Amount involved and results obtained • Time limitations imposed by client & Experience and reputation • Fixed or contingent fee. |
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Fee Splitting
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Cannot fee split with a non lawyer, but can with a lawyer if the fee is split in proportion to the work perform, or each assumes joint responsibility. The client must give informed written consent, and total fee reasonable.
• Disclose what each lawyer is getting. |
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Fee agreement
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May be oral. Must communicate upon request the basis or rate of fee.
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Contingent Fees
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Must be in writing. Not allowed in criminal or dissolution. (beware if >40%)
• Must specify if the fee is to be calculated on the gross or net recovery. • Must provide a written accounting showing how fee calculated • Client has the right to have a court review |
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Retainer
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Fee for lawyer to be available during a specified period for a specified matter. Apart from any compensation.
• Must be in writing, signed by the client. Lawyer’s property, not Trust. |
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Flat Fee
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Must be in writing signed by client and include:
• Scope of services, total amount and the terms of payment. • Fee is the lawyer’s property and will not be placed in trust account. • Agreement does not alter right to terminate lawyer’s services • Client may be entitled to a refund if portion of services not performed. If there is a dispute, must take reasonable/prompt action |
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Trust Account
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No co-mingling with the lawyer's funds. Excludes retainers & flat fees. Withdrawn when earned. Must provide accounting of any transfer. Must bear interest for either IOLTA or client. Spot audits by WSBA. Records must be accurate & up-to-date. Must be FDIC insured.
Client Property (must be identified, kept in a safe place, & returned upon request) Client Files (must be turned over upon request, except work product, even if unpaid bill; copies okay) Unpaid Lawyer (lawyer's lien toothless tiger) |
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Withdrawl
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Reasonable steps must be taken to avoid foreseeable prejudice to the client.
Any unearned fees must be returned. |
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Matters in litigation
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Permission of the tribunal is required.
• State (10 days notice of intent, if no objection automatically effective) • Fed (Always requires a motion and order) |
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Mandatory Withdrawal
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• Lawyer is discharged,
• Continued representation will result in violation of the RPCS, or • Physical/mental condition unreasonably impairs ability to represent |
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Permissive Withdrawal
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• No material adverse effect on the client,
• Client persists in criminal or fraudulent conduct involving lawyer • Lawyer’s services used to perpetrate a crime or fraud • The lawyer considers the client’s acts repugnant • Client does not pay or fails to substantially fulfill in obligation and the client has been warned. • Representation is unduly burdensome, or Good cause |
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Unauthorized practice of law
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• shall not aid a nonlawyer (including disbarred) in the unauthorized practice of law
• May not partner with nonlawyer if any activities are practice of law • Delegating judgment may be unauthorized practice of law • Practice of law (advice, drafting, representing, negotiating) |
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Multijurisdictional
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• Shall not establish office or other permanent presence in Washington
• May practice in Washington if 1) temporary & associated, 2) reasonably related to pending or potential proceeding or ADR, or 3) reasonably related to lawyer's practice in admitted jurisdiction • in-house counsel okay • Pro hac vice (specialized admission for purposes of the case, usually require association) |
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Admission to practice
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1) must graduate ABA approved law school or WSBA clerkship, or reciprocity, & 2) be of good moral character
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Pay to play
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Cannot accept a government position if the lawyer or law firm contributes or solicits political contributions for the purpose of obtaining the post.
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Professional Misconduct
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• violate, attempt to violate RPCs,
• commit criminal acts reflecting adversely on honesty, trustworthiness, or fitness as a lawyer, • engage in dishonest, fraudulent, deceitful, or misrepresentative conduct, • engage in conduct prejudicial to the administration of justice, • knowingly assist a judge in violating CJC, • discriminate, • commit any act involving moral turpitude, corruption, or physical assault, • willfully disobey or violate a court order, • violate lawyer's oath, • Violate a duty or sanction imposed under the RELC • Violate the CJC if applicable, or • Conduct demonstrating unfitness to practice law. |
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Discrimination
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Cannot commit a discriminatory act prohibited by law committed in connection with the lawyer’s professional activities.
Misconduct to engage in conduct toward judges, other parties and counsel, witnesses, court personnel, or jurors that a reasonable person would interpret as manifesting prejudice or bias. Does not restrict advancing material factual or legal issues/arguments. |
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Snitch Rule
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Only SHOULD not must
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Judicial ethics
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if a judge appears in the fact pattern, comment on his ethics
• if you don't know the judicial rules, apply the lawyer rules & state judge held to a higher standard Judge must avoid impropriety or appearance of (no ex parte contact, cannot take gifts except close family or household, limited public comment on pending cases, no court experts except with notice to parties & right to respond, no use of CI obtained as a lawyer, limited ability to act as a fiduciary) • duty of fair campaigning (no pledges of specific rulings, no partisan events, no personal solicitation of campaign contributions) |
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When must judge disqualify
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• Judge must disqualify himself when impartiality can be reasonably questioned on the basis of personal bias, knowledge of disputed facts, personal or household financial interests, serving as a lawyer or witness in the matter, or financial interest in the party
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