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86 Cards in this Set

  • Front
  • Back
What duties do you owe to your client?
1) Financial Responsibility
2) Silence
3) Confidentiality
4) Competence
5) Communication
6) Loyalty
7) Dilligence
What duties do you owe to people other than your client?
1) Candor
2) Fairness
3) Dignity/Decorum
To whom, other than your client, can you owe a duty?
1) Court,
2) adversaries,
3) legal profession,
4) third parties,
5) public.
What is required by the duty of confidentiality to a client?
Don't reveal anything related to the representation of a client without her consent, regardless of wehther client requested that something be kept confidential or not.
When does the duty of confidentiality attach?
When confidences are communicated in seeking representation; may attach before lawyer/client relationship is formed, or even if no relationship is formed.
Can the duty of confidentiality be disclaimed?
Only if it is done in VERY plain English; rarely successful
What is the difference between the duty of confidentiality and attorney client privilege?
-Duty of confidentiality is broader;
-ACP is an evidence rule allowing privilege holder to prevent you from testifying at trial.
Overlap, but confidentialiyt applies regardless of source of information to anything not generally known and to disclosures beyond legal representation.
Exceptions to the duty of confidentiality:
1) Consent (express or implied from representation)
2) Defending yourself against malpractice, disciplinary actions, or nonpayment
3) Compelled by court order
4) conflicts checks at new legal employer
5) limited permissive disclosures as necessary to prevent reasonably certain imminent death or substantial bodily harm
6) Under ABA only, permissive disclosures to prevent fraud if client is using your services to commit crime and disclosure would prevent or mitigate substantial loss
What california specific rules apply to the disclosure of confidential information?
If disclosing to prevent death or imminent bodily harm, must first:
1) make a good faith effort to persaude client not to commit the act and
2) inform client of decision to reveal confidences IF REASONABLE IN THE CIRCUMSTANCES
Does CA have an exception to the duty of confidentiality for financial crimes?
When does a conflict of interest arise with respect to a client?
When the interest of another client, yourself, or a third party materially limits or is adverse to loyal representation
Are you responsible for a conflict of interest of which you were nto aware?
EXCEPTION: short term legal services under court agency or nonprofit program
What is imputed disqualification?
Any group of lawyers taht work together closely or share responsibiliteis share each others conflicts (disqualifies but does not discipline). EXCEPTIONS:
1) ethical screens permissible if imputed disqualification is from a past representation while at a different organization and client consents
2) purely personal conflicts not imputed
3) short term legal services under nonprofit or court programs not imputed
What remedy in cases of imputed disqualification?
Depends on whcih stage of the case.
1) Refuse to take case
2) advise multiple clients to get separate counsel OR
3) withdraw
What conflicts always COMPLETELY prohibit representation?
1) Same lawyer/law firm on opposite sides of the same matter (both clients in direct conflict); 2) FILL IN
Under what circumstances might conflicts be permissible?
Certain examples, subject to case by case analysis of three elements:
1) lawyer reasonably believes she can represent everyone effectively despite conflicts
2) lawyer informs each affected client
3) client consents in writing (if duty of confidentiality prevents disclosure of necessary inforamtion, consent may not be possible).
What conflicts MIGHT be permissible, subject to analysis under three factors:
1) Opposing a current client in another matter (eg. one labor and one securities matter; all clients must consent)
When are things that might look like conflicts not actually conflicts?
1) lawyer represents a policy holder and his insurance company as joint company, where insurer's interest in each is only as an indemnity provider (CA statutory exception);
Can a legal position taken in a case create a conflict?
Not usually, but if one victory would disadvantage the other, must obtain consent
What remedy if a potential conflict between multiple clients in the same matter turns into an actual conflict?
Best: Withdraw from both and advise separate representation.
Acceptable: Withdraw from the side that has NOT given you information leading to the conflict
When do potential conflicts arise from representing multiple clients in the same amtter?
1) acting as an intermediary
2) corporation and any of its employees or shareholders
3) both spouses in unconstested divorce or will drafting.
4) Prenuptual contract drafting (ALWAYS A CONFLICT)
When can you, an individual lawyer, take on a new client in a matter related to one on which you represented a former client?
Never without client's
1) knowledge AND
2) consent.
Must inform.
How do you determine wehther you can represent a new client in an action against a former client?
If the representations overlap in 1) scope 2) function or 3) information, conflict exists.
When is your representation of a former client imputed to a firm that you have left, but where you worked when representing that client
1) If the matters are substantially related or the same and
2) if any remainin glawyer has confidential material informaiton
When is your representation of a former client imputed to a firm new firm that you have transferred to?
Only if the new firm fails to:
1) timely and effectively screen you
2) keep you from receiving a direct part of the fee
3) notify your former client and
4) periodically certify compliance with those conditions
What standard governs conflicts of former government laywers now in private practice?
A government lawyer who worked "personally and substantially" on a "matter" may not work on the same matter later in public practice WITHOUT THE GOVERNMENT'S CONSENTQ
What is a "matter" for purposes of conflicts?
a specific dispute between specific people over specific issues
When is a former government lawyer's work on a matter imputed to a new firm that he has transferred to?
Only if the new firm fails to
1) timely and effectively screen the gov. lawyer
2) keep you from receiving a direct part of the fee
3) notify the government
What rules apply to former jdicial officers (clerks, etc.) moving into private practice for purposes of conflicts?
Same as for gov. lawyers
What is the key difference between the standards for avoiding imputed disqualification and personal disqualification for conflicts with past clients?
IDQ requires simply that the former client be informed.
Personal DQ requires that they be informed and consent.
When do conflicts arise between lawyer and client?
1) Substantial Gifts to lawyer.
2) Limitations on liability
3) publication rights
4) advances and loans to clients
5) use of information covered by duty of confidentiaity to a client's disadvantage
6) business transactions or adverse interests
What are the rules governing substantial gifts to lawyers from clients?
Lawyers may not:
1) solicit substantial gifts from clients or
2) draft legal isntruments for clients WHO ARE NOT YOUR COSE RELATIVES IF they will provide a substantial gift to you or your relative
Can a alwyer limit the client's righ tot report him for ethical or professional violations?
Can a lawyer limit his professional liability to a client?
-Not at all in Cali.
-Not under ABA unless the client is independently represented in forming the contract
Can a client sell his lawyer the publication rights to his story?
-ABA: Not before representation has ended.
-Cali: Not unless jduge is satisfied that the client clearly understands
Can a lawyer loan or advance money to his client?
-ABA: Only litigation expenses for indigent clients adn advance of litigation expenses in continent fee cases.
-Cali: only with a written loan agreement to an existing client.
When can a cient enter into a business transaction with a lawyer?
Only if First Discussed Over Coffee:
1) Fair terms to client
2) Disclosed in understandable writing
3) Opportunity for client to consult an outside lawyer and
4) Client Consents (in writing required in Cali)
When can lawyer accept "payment" in the form of shares, etc.?
If the work is valued reasonably and it is fair and reasonable under circumstances known to the alwyer when interst was acquired.
When can a lawyer sit on the Board of Directors of a client organization?
Non-profits: fine.
Corporate client: Permissible but discouraged because likelyt o compromise duties of loyalty and confidentiality
Can a laywer appear as both witness adn trial counsel in a case?
ABA: Only if
1) testimony is unconstested OR
2) testimony regards nature adn value of services rendered OR
3) distinctive value to the case means that withdrawal woudl impose substantial hardship on teh client. AND
4) if testimony might preate prejudice, client consent is requried.

yes in a bench trial.
with client consent in jury trial
Can a lawyer represent a client when the lawyer has a close relationship with opposing counsel?
What qualifies as a "close relationship with opposing counsel"?
Immediate family, roommate, boyfriend, shackmates, etc.
Can a lawyer represent a client when the lawyer has a business relationship with opposing counsel?
yes, but must be disclosed
Are conflicts based on close relationships imputed to co-counsel?
If a third party is paying a lawyer's bill for services to client, do they get input to the representation?
NO. Only duty is to client
What are the federla requirements for in house, securities lawyers?
If a lawyer discovers that an agent of the company has materially violated securities law:
1) must report matter to CEO or chief legal counsel.
If no response
2) must inform board or highest authority in the company.
If no response, AND
3) if you reasonably believe it necessary tp revent fraud, perjury, or substantial injury to teh organization or investors, or to rectify financila injury from a violation that involved your services, then lawyer MAY report to SEC without client consent.
What are the ethical rules governing attorneys fees in non-contingent fee cases
Agreement msut include:
a) how fee is calcaulted
b) what services are covered, and
c) lawyer and client's duties.

in Cali,
d) must be in writing unless
i) fee is under $1000 OR
ii) agreement is with a corporate client OR
iii) for routine serices for a regular client OR
iv) in an emergency
What are the ethical rules governing attorneys fees in contingent fee cases?
1) written agreement in writing
2) which covers three topics:
a) what percentage lawyer takes
b) what expenses are included
c) whether attorney percentage comes off before or after expenses deducted.

IN CALI, also:
4) must include how work not covered by contingency fee will be paid and
5) that lawyer's fees are negotiable.
Are there limits on the types of cases which can use contingent fees?
Yes. ABA: not in domestic relations or criminal cases.
Can a lawyer hired on contingency fee recoer any fees if the client relationship ends before contingency/judgment?
Yes, if client eventually wins, then lawyer may recover in proportion to the work he did
When are fees to high?
ABA: Fees must be reasonable in light of all circumstances
CA: Fees must NOT be unconscionably high
Can an attorney withdraw from a representation if the client refuses to accept a reasonable plea deal?
Can an attorney hired on contingency fee demand an hourly rate for work performed if he or she withdraws?
Yes, if it is reasonable
Can an attorney representing multiple clients bill both clients for the same activity?
IN Cali: only if not unconscionable, clearly disclosed at outset of relationship, and clients consent.
Can lawyers be resquired to paricipate in fee artibration?
Is it okay to split fees with other lawyers in your firm?
Is it okay to split fees with other lawyers from a different firm?
Yes, so long as:
1) written disclosure to client
2) client consents
3) fees are ethical
4) in ABA, division in sproportional to the work done by each (unless each is jointly responsible for the action).
Is it okay to split fees with non lawyers?
NO, except:
1) death penefits paid to deceased lawyer's firm or heirs for this work
2) fees passedon as salaries to non lawyer employees
3) shareing of court awarded fees with a nonprofit organization that employed or recommended the lawyer
Can a lawyer pay for a qualified referral service?
Can a lawyer partne with nonlawyers in providing legal services?
Can nonlawyers be shareholders in a law firm?
Are multi-disciplinary practice shops acceptable?
Are reciprocal referras with other professional services acceptable?
Yes, so long as expalined to client
If you personally provide non=legal services, hen ethcial rules do or do not apply?
If youprovide separate, non-legal services to a client in addition to legal work, does the attorney client privilee aply?
NO, and you must tell the client that
Can a lawyer control non-lawyers?
What must you, as a lawyer, do with client-owned funds?
Place it in an individual client trust trust account or, for small funds held for short times, can place in a pooled client trust account
What must you, as a lawyer, do with client-owned property?
Label it and place it in a safe place (eg. office)
What must you, as a lawyer, do with client-owned funds if they are in dispute?
Withhold dispute portion in the client trust account til resolution
How long does California require you to keep records of your client's property/
5 years after distribution
Are you required to carry professional liability insurance?
No, although:
-ABA may administratively suspend you if you fail to report whether you have it or not and
-CA requires you to disclose in writing the lack of insurance to any client needing more than 4 hours.

EXCEPTIONS: government lawyrs, in house lawyers
What are the consequences for breaching duty of competence?
1) discipline by Bar
2) disqualification in litigated matter and
3) civil malpractice liability
What is "competence' for purposes of client duties?
Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
Can you accept a case if you are a novice in the relevant area of law?
Only if you can
1) learn it without undue expense or delay or
2) you associate with a lawyer competnet in the area
What is the difference between a malpractice action and a disciplinary actioN?
-Malpractice brought by P for money damages.
-Administrative brought by state bar to protect public.
What is the "pro bono exhortation?"
Lawyers should accept the case of the defenseslss or oppresesed if your only reason to refuse is selfish, and do a fair share of the work without charge
When MUST you reject a case?
If you would violate a law or ethical rule to take it
What decisionsdoes the client have the right to make in a case?
Decisions with regard to substantive rights
What decisions does the lawyer have the right ot make in a case?
legal strategy
When MUST you withdraw from representation
1) Fired OR
2) Continuing would violate law or ethical rule OR
3) If client only brining suit to harrass
When MAY you withdraw from a case if you want?
1) If you convince the court there is good cause AND
2) withdrawal will not cause undue delay or disruption
3) CA: If client breaches fee agreement
4) ABA: when client breaches an obligation to you after being awrned OR representation places unreasonable burden.

Eg. If client insists on actions you find repugnant
What is the process for withdrawing from a case?
1) provide timely notice to the client AND
2) promptly return
a) any unspent fee and expense advances
b) property and material papers of the client, including work product.
Can you have consensual sex with your client?
ABA: Only if you had a preexisting sexual relationship.
CA: Yes, with cautions.
When can the government regulate attorney advertising?
When three factors are met:
1) government asserts a substantial interest (citizen privacy, preserving dignity of profession, etc.)
2) regulation directly advances that interest
3) regulation is narrowly tailored
What is considered advertising for lawyers?
Any lawyer's communication with the public at large?
What are the specific regulations on lawyer advertising?
1) must not be false or misleading
a) not omit or mislead material information
b) doesn't raise unjustified expectation so rmake unverifaible predictions
c) no guarantees, warranties, or predictions of a result
d) no testimonials without express disclaimers
2) no adveritsements of speciality unless you are a certified specialist:
a) experience
b) examination
c) education
d) evaluations.
3) must not be used to harrass or solicit someone who has asked to be left alone
4) targeted direct mailing must be clearly labeled
5) all ads must identify if they are dramatizations or impersonations
6) identify at least one lawyer responsible for contents
7) keep records of content and placement for two years