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Duty of Confidentiality
- You cannot reveal anything related to the representation of a client, w/o his consent.
- This does not require attorney-client relationship.
- 1) CONSENT
- 2) DEFENDING SELF
- 3) PREVENT DEATH OR SUBSTANTIAL BODILY HARM (CA - Req's first if rsn'ble, making Good Faith effort to persuade him against act and inform him of your decision to reveal)
- 4) PREVENT FUTURE FRAUD OR FINANCIAL CRIMES
- (CA - NO Financial Exception)
Conflict of Interest
- There is a Conflict of Interest if: an interest of yours, another client, or third party materially limits or is adverse to your duty of loyalty to your client.
- CA allows case-by-case screening to overcome conflicts.
- You are responsible for conflicts that your are ignorant of
- EXCEPT for short term legal services where you are only responsible if you have actual knowledge of conflict.
- You must not take on representation UNLESS:
- 1) You objectively, reasonably believe you can represent everyone effectively,
- 2) You inform each client, AND
- 3) Client consents, confirmed in writing.
- You and all members of your firm share conflicts.
- 1) Former and current gov't lawyers,
- 2) Personal interest,
- 3) Close family relationship with Client,
- 4) Sexual relationship, AND
- 5) Prior association with law firm and the lawyer is timely screened.
Business with Clients
- Entering into business with a client OR obtaining an interest adverse to client's allowed under conditions:
- 1) Terms are fair to Client,
- 2) Fully disclosed in understandable writing,
- 3) Client has an opportunity to consult an outside lawyer, AND
- 4) Client provides written consent.
Remedies for Conflicts of Interest
- Depending on circumstances, you may:
- 1) Refuse to take case,
- 2) Advise multiple clients to get seperate counsel, OR
- 3) Withdraw.
Payment to Attorney in Stock
Allowed if it is fair and reasonable under the cirumstances known to the lawyer, when the interest was acquired.
- A lawyer may serve on the Board of Directors of a corporate client, but strongly discouraged because it may compromise duties of loyalty and confidentiality.
- Allowed for non-profit legal services organization.
- You cannot limit your client's right to report you for:
- 1) Ethical or professional violations, OR
- 2) Malpractice liability UNLESS client had independant counsel.
Publication Rights Contracts
- ABA: You may not buy rights to Client's story before representation has ended.
- CA: You may K with Client IF judge is satisfied that the client clearly understands and consents
Loans and Advances to Client
- ABA: No financial assistance allowed, EXCEPT for:
- 1) Costs and litigation expenses when representding an indigent, OR
- 2) The advance of litigation expenses in contingent fee cases.
- CA: Above rules also apply to non-litigation contexts; No paying prospective Client's debts, but loans allowed IF:
- 1) Lawyer is hired, AND
- 2) There is a written IOU.
Gifts to Lawyer or Lawyer's Family
- You may not:
- 1) Solicit a substantial gift from a client, OR
- 2) Draft a legal instrument that provides a substantial gift to you or your relative for a client, UNLESS Client is a close relative.
Relationship with Opposing Counsel
- If opposing counsel is immediate family, Client must give informed consent.
- CA: includes other 'intimates,' eg shackmates
- No imputed disqualification
If Trial Counsel is a Necessary Witness...
- ABA: TC cannot serve as counsel and witness UNLESS
- 1) Testimony regards uncontested matter,
- 2) Testimony regards the nature/value of services rendered, OR
- 3) Your withdrawal is a substantial hardship on Client.
- CA: TC cannot testify in jury trials UNLESS
- 1) Testimony regards uncontested matter,
- 2) Testimony regards nature/value of services rendered, OR
- 3) Client provides written consent.
Screening of Disqualified Lawyer to Avoid Imputation of Conflict
- No imputation if conflict arises from association with prior firm AND there is proper screening, where :
- 1) Disqualified lawyer is timely screened from participation in the matter,
- 2) Disqualified lawyer gets no fees from the matter,
- 3) Written notice is promptly given to any affected former client, AND
- 4) Certifications of compliance with screening procedures are provided to former client.
Improper Use of Information Adverse to Client
You must NOT use info relating to representation to Client to disadvantage Client UNLESS given informed consent.
Compensation from Third-Party
- You may not accept compenstaion for respresenting Client from someone other than Client UNLESS:
- 1) Client gives informed consent, (CA req's written)
- 2) No interference with lawyer's independent professional judgment or lawyer-client relationship AND
- 3) Info related to the representation is protected.
When representing multiple clients, you must have written informed consent from each client before settlement.
Settling Malpractice Claim with Client
- 1) Advising Client to obtain independent counsel, AND
- 2) Giving Client reasonable chance to consult with independent counsel.
Conflicts with Former Clients
If Client's interests are materially adverse to former client's interests, you cannot represent Client unless former client gives informed, written consent.
Conflicts from Prospective Clients
- If received info from prospective client that could be harmful to prospective client, you cannot represent Client with interests adverse to prospective client in substantially related matter, UNLESS:
- 1) There is written informed consent given by both Client and prospective client, OR
- 2) For imputation, disqualified laywer is timely screened and doesn't share fees.
- If a securities lawyer becomes aware of a material violation, lawyer must report to:
- 1) Chief legal officer, AND THEN
- 2) To the Board or highest authority, AND THEN
- 3) To SEC, IF reasonably necessary to prevent substantial financial injury, rectify injury if lawyer's services were used, or prevent Client from perjury.
Interests of an Organization
- If there may be substantial injury to organization,
- 1) Lawyer MUST report to highest authority of org, AND THEN
- 2) Lawyer MAY report to appropriate persons outside of org, to extent reasonably necessary
- CA: No reporting to outside persons UNLESS necessary to prevent criminal act that'll cause death or SBI
Former Government Attorney
- Former government attorney may NOT represent Client if worked 'personally and substantially' on connected 'matter' as government attorney, UNLESS government agency gives informed, written consent.
- Matter - specific dispute between spcific people over specific issues
- CA: Former prosecutors CANNOT later participate on defense side of the case.
- Imputed Disqualification: Disqualified lawyer may be screened.
Non-Contingent Fee Agreements
- Must contain:
- 1) How fee is calculated,
- 2) Services covered,
- 3) Dutes of Lawyer and Client.
- CA: Agreements must be in writing, UNLESS:
- 1) Fee <$1K,
- 2) With a Corporate Client, OR
- 3) Emergency or impractical situation.
Contingent Fee Agreements
- Req's a written fee agreement, signed by Client, containing:
- 1) %
- 2) What expenses are deducted from recover, AND
- 3) Whether % is taken before or after expenses deduction.
- CA: also req's:
- 4) How work not covered by contingency fee will be paid, AND
- 5) That Lawyers' fees are negotiable.
Cases where Contingency Fees are Prohibited
- 1) Domestic Relations
- 2) Criminal Cases
Limits on Fee Amount
- ABA: Fees must be reasonable, considering labor, novelty, difficulty, skill and time req'd, result, etc
- CA: Fee must not be unconscionably high
- Fees that are dependant on successful resolution of Client's case and payable from judgment proceeds.
- If discharged before resolution, you are entitled to reasonable value of services performed if Client wins.
- In Law Firm: Allowed
- Outside Law Firm: Allowed IF:
- 1) Total fee is ethical,
- 2) There is written disclosure and client consent, AND
- 3) Division is proportional.
- Non-Lawyers: Not Allowed EXCEPT:
- 1) Salaries for non-lawyer employees, AND
- 2) Sharing with nonprofit organixzation that employed or recommended lawyer.
Partnerships with Non-Lawyers
- Prohibited for purposes of providing legal services.
- BUT Reciprocal Referrals allowed if:
- 1) Not exclusive, AND
- 2) Explained arrangement to Client.
- 1) No false or misleading communication
- 2) Ad must include name and office of a lawyer or firm responsible for content
- 3) No payment for recommendations
- 4) Reciprocal Referral Arrangements allowed
- CA: Prohibits:
- 1) Guarantees/Warranties
- 2) Suggestion of quick settlement
- 3) Impersonation of Lawyer/Client without disclosing that it is impersonation
- 4) Dramatization of accident w/o disclosure
- 5) Contingent Fee Offer w/o info about litigation costs
Disclosure of Professional Liability Insurance
- Lawyer who doesn't have professional liability insurance must inform Client in writing IF reasonably foreseeable that amount of legal representation will exceed 4 hours.
- 1) Gov't or in-house counsel,
- 2) Services rendered in emergency, OR
- 3) Lawyer has previously advised Client.
Exceptions to Attorney-Client Privilege
- 1) Client seeks Att's services t enable or aid a future crime or fraud,
- 2) Communication is relevant to an issue of breach of duties in Attorney-Client relationship,
- 3) Former joint clients now in civil litigation, OR
- 4) Evidence of competency or intention of Client for a will or intervivos transfer.
- CA: Also:
- 5) Necessary to prevent a criminal act resultig in death or SBI
You have a duty to safeguard Client's property by labeling and storing in a safe place.
- Client's money must be held in a Client Trust Account, bearing interest for Client.
- Smaller funds held for a short period may be held in Pooled Client Trust Accounts, with interest going to pay banks' fees and then State Bar.
- No commingling
- Duty to Keep Records (CA req's 5 years)
Communication with Represented Person
- You must not communicated about Matter with Person you know is represented by Counsel in Matter, UNLESS Counsel granted permission.
- Person cannot give permisssion.
Duty to Commnication
You have a duty to keep Client informed about the case, including settlement offers and answering Client's messages.
Duty of Competence
- You must use legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
- Otherwise, subject to:
- 1) Discipline,
- 2) Disqualification in matter, OR
- 3) Malpractice liability.
Scope of Representation
- Client makes substantive decisions.
- Laywer makes decisions on procedure and legal strategy.
- Mandatory W/D if
- 1) Continuing representation would violate law or ethical rule, OR
- 2) Impaired ability to represent Client.
- Permissive W/D if
- 1) W/D will not cause undue disruption, (Not in CA)
- 2) Client persists in acts Att reasonably believes to be criminal or fraudulent,
- 3) Client used Att's services to perpetrate crime or fraud, (Not in CA)
- 4) Client insists on acts Att finds repugnant or has fundamental disagreement,
- 5) Client substantially fails to fulfill obligations and has been given reasonable warning,
- 6) Representation will result in unreasonabl financial burden on Att, OR (Not in CA)
- 7) Other good cause.
- 1) Timely notice to Client, AND
- 2) Prompt return of fee and expense advances AND Client's property and material papers
Duty to make Truthful Statements
- You must not knowingly...
- To Tribunals:
- 1) Make false statement of material fact or law,
- 2) Fail to correct false statement of material fact or law you previously made,
- 3) Fail to disclose controlling legal authority directly adverse to Client, OR
- 4) Offer false evidence.
- To Others:
- 1) Make false statement of material fact or law, OR
- 2) Fail to disclose material fact when necessary to avoid assisting a crime or fraud by Client, UNLESS prohibited by confidentiality.
- You may not facilitate Client Perjury.
- Civil: You must refuse to call client.
- Criminal: You may..
- 1) Counsel Client, AND THEN
- 2) Ask court for permission to W/D, AND THEN
- 3) Tell court, even if priviliged info
- 3) Allow Defendant to testify in the narrative.
After False Evidence is Offered...
- You must take reasonable remedial measures:
- 1) Counsel Client to w/d or correct false evid, AND THEN
- 2) Ask tribunal for permission to w/d.
- Duties end w/ proceedings, which is after time for appeal has run
Duty to Produce Evidence
- For Instrumentalities of a Crime, then you must not obstruct access to or tamper with it.
- You may retain evidence for a reasonable time to prepare for case, but cannot alter or destroy.