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bulk of duties owed to your clients
- financial responsibility
duties to entities other than client
- candor / truthfulness - to court
- fairness - to adversaries
- dignity / decorum - legal profession
duty of confidentiality
- can't reveal anything related to the representation without her consent.
- scope - duty applies regardless whether the client requested it or not.
- duty can attach before a lawyer / client relationship is formed, or even if none is formed.
- once attached, the duty of confidentiality lasts indefinitely.
- evidentiary rule that allows you to refuse to produce or testify about confidential communications related to the representation.
- confidentiality applies regardless of the source of the info, prohibits disclosures that could reasonably lead to discovery of info related to the representation.
exceptions to the duty of confidentiality
- defendig yourself (necessary to establish your defense or claim)
- if compelled by final court order, law, other ethical duties.
- prevent certain crimes: (1) death or substantial bodily harm; (2) fraud or financial crimes.
- CA - you must 1st, if reasonable in the circumstances, (i) make a good-faith effort to persuade the client not to commit the act, and (ii) inform the client of your decision to reveal his confidence.
- CA - no financial exceptions.
- if an interest of you, another client, or 3rd party materially limits or is adverse to loyal representation, you have a conflict of interest.
- if COI emerge only after rep starts, disclose and get consent.
- Rule - must not take on rep unless: u objectively, reasonably believe you can rep everyone effectively; and you inform each affected client. if your duty of confidentiality prevents u from fully disclosing info the client needs to understand the conflict, then consent may not be possible; client consent must be in writing.
- you and all the members of your firm share conflicts. this includes any group of lawyers that work together closely or share responsibilities.
- CA follows these rules for disqualification, but does not subject a lawyer to discipline for imputed conflicts.
- exception - ethical wall (block off contact between lawyer with the conflict and other lawyers of his firm)
business transactions or adverse interests between u and client
- First Discuss Over Coffee
- F - fair terms to the client
- D - disclose fully in understandable writing
- O - Opportunity for client to consult an outside lawyer
- C - Consent given in writing form client
publication rights and contracts
CA case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents
loans and advances to your client
- ABA - no, except for costs and litigation expenses when representing the indigent, and the advance of litigation expenses in contingent fee cases.
- CA - prohibits the promise of paying a prospective client's debt, but allows loans in all matters as long as there is a written IOU.
trial counsel as necessary witness
- ABA - cannot unless appearance as witness won't prejudice client and (i) ur testimony is uncontested or regarding the nature and value of service rendered; (ii) if your distinctive value to the case means withdraw would impose substantial hardship on the client.
- CA - prohibits attorneys from testifying only in jury trials if the client gives written consent.
conflicts between clients
- generally, you may represent clients with potential conflicts with proper consent, but it is rarely proper if their interests are in actual conflict.
- CA - statutory exception: does not extend prohibition to representing a policyholder and his insurance company as joint clients, where the insurer's interest in each matter is only as an indemnity provider.
2 clients with inconsistent positions
maybe with consent of both, but if either would be disadvantaged you must withdraw
new clients in matters related to former clients
- do the representations overlap in function, scope, or information?
- If you left old firm - it still cannot rep new client if (i) matters are substantially realted or the same, and (ii) any remaining lawyer has confidential material info.
- At your new firm, your conflicts will not extent to your collegues if you (i) are screened, (ii) receive no direct part of the fee, and your former client receives (iii) notice and (iv) periodic certifications of compliance with these conditions.
former gov lawyer now in private practice
- CA bars prosecutors form later working for the defendants of those cases.
- ABA bars a gov lawyer who worked personally and substantially on a specific dispute between specific people over specific issues later in private practice.
fed laws increased obligations of securities lawyers
- 1. in-house lawyer must report violation to authority; have the right to go to the highest authority if no appropriate action taken.
- 2. if u reasonably believe it necessary to prevent fraud, perjury or substantial injury to the organization, or to rectify financial injury, you may disclose confidential info to the SEC without client consent.
- CA - prohibits outside reporting, federal preemption means a CA lawyer may comply with fed law.
- in non-contingent fee cases, agreements must include: how the fee is calculated; what services are covered, and the lawyer and client's duties.
- CA - agreements must be in writing, unless (i) fee is under $1000, (ii) with a corporate client, (iii) for routine services for a regular client, or (iv) it's an emergency or impractical.
contingent fee cases
- written fee agreements must be signed by the client and contain:
- 1. your percent of recovery; and
- 2. what expenses to be deducted form recovery; and
- 3. whether your % is taken before or after expenses.
- CA - also requires that agreements state (i) how work not covered by the contingency fee will be paid, and (5) that lawyer's fees are negotiable.
ABA - contingency fees may not be used in
- domestic relations or criminal cases.
- CA - silent on criminal cases, OKs contingent fee divorces "provided the fee arrangement won't encourage the breakup of an otherwise savable marriage."
when are fees too high?
- ABA - fees must be reasonable (taking into account the labor, novelty, difficulty, skill, and timing required, result obtained ...)
- CA - fees must not be unconscionably high
disclosure of professional liability insurance
- ABA allows administrative suspension for failure to report whether you carry insurance on your annual registration statement.
- CA requires at the time of engagement, written disclosure of the absence of insurance directly to any client foreseen to need more than 4 hours of work.
duty of competence
- you have a duty to render competent service to your client. competence = using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
- also - duty of diligence, duty to communicate.
duties on withdrawl from representation
- mandatory - must withdraw if continuing would violate a law or ethical rule.
- permissive - may withdraw if u convince the court there is good cause, and your withdraw will not cause undue delay or disruption. recognized causes = client's acting illegally, his insistence on action you find repugnant, unreasonable financial burden, or when client (after warning) fails substantially to fulfill an obligation to you.
- CA - allows withdraw if your client simply breaches an agreement as to fees or expenses.
duty to present facts and evidence truthfully
must refuse to make a false statement of material fact, or offer evidence you know is false to a tribunal, or fail to correct a false statemnt of material fact or law that you previous made to the tribunal.
duty of produce evidence
you must not supress evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty. you must not obstruct access to or tamper with fruits or instrumentalities of a crime.
duties of fairness
the lawyer has a duty to behave honestly in all dealings, whether or not engaged in the practice of law. when there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession.
dealing with the press
you may respond to the press and the public's right to know, but you and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case.