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23 Cards in this Set
- Front
- Back
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DEFINE
two basic duties |
Duty of confidentiality: keep confidential info private
Duty of loyalty: act on behalf of client interests |
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DEFINE
method to obtain client consent |
Informed consent: lawyer must convey adequate info and explain risks of reasonably available alternatives
Confirmed in writing: signed |
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LIST
specific rules of conflicts of interest |
Business transactions with clients
Info gained by representation Gifts Media rights Financial assistance Payment from third person Aggregation of separate settlements/pleas Limiting liability Proprietary interests Sexual relations Related lawyers |
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DEFINE
business transaction with clients re:conflict of interest |
Business transaction with client: transaction must be 1) fair and reasonable and ; 2) fully disclosed in writing; 3) client advised in writing to seek independent counsel; 4) client given reasonable to do so; 5) and client gives informed consent in writing
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DEFINE
payment from third person rule |
Payment from third person: informed consent required and independent lawyer judgment must not be compromised; information regarding to representation must be protected from third person
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DEFINE
when lawyers can limit their liability |
Limiting liability: lawyer shall not prospectively limit her malpractice liability unless the client is independently represented in making agreement; shall not settle claim for malpractice with unrepresented client unless person is advised in writing that he should seek independent counsel and given opportunity to
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DEFINE
rule re:conflict imputed to all lawyers in firm |
Conflict imputed to all lawyers in firm: none of firm members shall represent client when one practicing alone would be prohibited, unless prohibition based on personal conflict of prohibited lawyer and does not present significant risk of materially limiting representation of the client
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Conflict of interest re:prospective client consultations
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Conflict of interest requirements: lawyer shall not represent client with interests materially adverse to prospective client in same or substantially related matter if info received that could harm person in matter
Firm also disqualified unless reasonable measures taken to avoid info, lawyer screened, and no fees given to the lawyer/client is given notice; everyone must agree |
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DEFINE
rule re:confidentiality (when can lawyer reveal information?) |
Lawyer shall not reveal information relating to representation unless client gives 1) informed consent, OR 2) disclosure impliedly authorized, OR 3) disclosure is permitted by RPCs
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LIST
types of situations lawyer must/may reveal otherwise confidential information |
Death/bodily harm (must)
Intent to commit crime (may) Intent to commit fraud (may) To secure legal advice (may) To protect lawyer (may) Required by court (may) Breach by court appointed fiduciary (may) |
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Time limits for nondisclosure of information
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Time limits: duty of nondisclosure covers period prior to and subsequent to creation of relationship
Lawyer must protect confidential info even if no relationship After relationship terminates, lawyer must continue to protect info; shall not use info related to for detriment of former client or for lawyer’s own purposes without informed consent |
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DEFINE
rule re:client perjury and false evidence |
Client perjury/false evidence: lawyer must be candid with tribunal and shall not offer evidence knowing falsity; if lawyer learns evidence is false, lawyer must notify tribunal unless prohibited by RPCs; if prohibited, lawyer shall take reasonable steps to obtain client consent to disclosure; if refusal, lawyer may withdraw
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DEFINE
supervisory duties/coverage under RPC |
Supervisory duties/subordinate lawyers: if lawyer is direct supervisor, lawyer covered by RPC; partners and supervising lawyers shall make reasonable efforts to ensure everyone follows rules; supervisory lawyer shall make reasonable steps to assure those they supervise comply with the RPCs
Imputed liability: LIABLE if if lawyer orders or with specific knowledge ratifies the conduct OR if supervisory lawyer knows conduct when its consequences can be avoided or mitigated, but lawyer fails to take reasonable remedial action |
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DEFINE
subordinate lawyer coverage |
Subordinate lawyer: does not violate RPCs if lawyer acts in accordance with supervisor’s reasonable resolution of an arguable question of professional duty
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DEFINE
nonlawyer assistant liability under RPC |
Nonlawyer assistant liability: if conduct of person would be in violation of RPCs if engaged by lawyer AND lawyer ordered or with specific knowledge ratified the conduct OR if supervisory lawyer knows of conduct when its consequences can be avoided or mitigated, but fails to take reasonable remedial action
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Advertising rules
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Lawyer shall not make a false or misleading communication about lawyer or lawyer’s services
No statements about quality, even if objectively true; if reasonable person led to form unjustified expectation, statements are considered false and misleading even if true No statements about specialization, except patent/trademark; may say practice is limited or has emphasis on certain area of law; if certified, must indicate that WA Supreme Court does not recognize specialties No statements about ability to influence a court or public body Direct mail solicitation allowed, even targeted In person solicitation, including telephone/real time electronic communication, generally not allowed unless there some pre-existing relationship between lawyer and prospective - allowed for friends, family, former clients |
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Criminal prosecutor extra duties
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Criminal prosecutors have additional duty to seek justice
Must not prosecute someone unless there is probable cause that the person is guilty of crime of charged Must advise defendant of need to obtain counsel; disclose info that mitigates guilty Avoid extrajudicial statements that could prejudice proceedings |
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Fee agreements
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Fee agreement: may be oral, but always wise to have writing before commencing representation; lawyer must communicate to client basis or rate of fee at any time requested by client
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Contingent fees
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Contingent fees: must always be in writing; not allowed in criminal or dissolution matters; allowed in post dissolution matters; must specify if fee is on gross or net recovery; when taken, lawyer must provide client with accounting showing how fee is calculated; client always has right to have court review
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Retainer fees
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Retainers: must be in writing; definition = fee client pays to be available during specific period or on specific case, in addition to and apart from any compensation for legal services performed; differentiated from advance payment of fees and cost (those go in trust account); must be signed by client and is lawyer’s property upon receipt - doesn’t go into trust account
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Flat fees
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Flat fees: must be in writing; charge by lawyer constituting complete payment for specified legal services; paid in advance or in party in exchange of the lawyer providing the services; signed writing shall include scope of services, amount of fee and terms of payment, fee is the lawyer’s property/not in trust, does not alter ability of client to terminate lawyer’s services, and client entitled to refund if services not performed
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DEFINE
mandatory withdrawal |
Mandatory withdrawal necessary when lawyer discharged, continued representation violates RPC, lawyer’s physical or mental condition unreasonably impairs lawyer’s ability to represent the client
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DEFINE
permissive withdrawal |
Permissive withdrawal may be appropriate when no material adverse affect on client; client persists in/uses lawyer to perpetrate criminal/fraudulent conduct; lawyer considers clients acts repugnant; representation becomes unduly burdensome; fails to pay bill and warning is given to client of withdraw; or any other good cause/valid reason
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