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Bar PR > 4) duties to Cs > Flashcards

4) duties to Cs Flashcards

1
Q

duty of competence: CA

A

–CA: dn intentionally, recklessly, w gross negligence, or repeatedly fail to perform legal services w competence

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2
Q

duty of competence: CA + MR

A
  • -provide competent rep

- -dont accept rep that dnh time/resources to do properly

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3
Q

competence defined: CA

A

applying:

  • -learning + skill, and
  • -mental, emo, physical ability reaonably nec to perform legal services

ok get competence by:
association w comptent L
acquire learning + skill before performance required

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4
Q

competence: exception; CA

A

in emergency ok give limited nec advice

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5
Q

competence + discipline: CA

A
  • -incompetence must be intentional, repeated, or grossly negligent to warrant discipline
  • -long period of neglect of matter –> willfulness
  • -not to punish for mistakes/etc unless failed to get the skills
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6
Q

malpractice agreements: CA vs MR

A

CA: can NOT prospectively limit liability for malpractice
MR: can prospectively limit if C is independently rep’d in the agreement

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7
Q

malpractice settlements: CA + MR

A

can’t settle claims for malpractice w/o first informing C in writing of right to seek indep counsel + giving opportunity to

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8
Q

standard of care: CA

A
  • -CA ethics rules are admissible evidence of SOC in malpractice
  • -can be ordinary neg IF P can show likelihood of favorable outcome and that could have collected
  • -crim D suing for malpractice that led to conviction must show D’s actual innocence – not just errors
  • -can claim emo distress too
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9
Q

duties to 3rd parties: CA

A

–no liability for malpractice to ppl other than C unless, L owed indep duty of care (ex. fiduciary, or beneficiaries of will or trust)

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10
Q

duties to 3rd parties: CA: balancing test

A

factors:

  • -extent to which transaction intended to affect P
  • -foreseeability of harm to P’
  • -how certain is it that P was actually injured
  • -closeness of connection btwn L’s conduct and injury
  • -policy of preventing future harm
  • -does holding L liable impose undue burden on profession?
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11
Q

malpractice SOL: CA

A

EARLIER OF:

  • -1 year afte rP discovers facts or should have discovered by reasonable diligence:
  • -4 years from date of wrongful act / omission

(different if actual fraud)

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12
Q

conflicts: personal/financial: CA + MR

A

L can’t enter business transaction w C or knowingly acquire business interest adverse to C

exceptions:

  • -fair + reasonable to client and disclosed in writing +
  • -C advised to get indep legal advice +
  • -C gives informed consent
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13
Q

conflicts: personal/financial: CA + MR: when can still rep C

A

L reasonably believes rep won’t be adversely affected AND

full disclosure, informed written consent

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14
Q

gifts from Cs: CA + MR

A

no soliciting substantial gift, unless L related to C (or C gets certificate of independent review from another L)

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15
Q

use of C info: CA + MR

A

can’t use info from rep of past or present C to disadvantage of C, w/o C’s informed consent

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16
Q

acquiring interest in litigation: CA vs MR

A

MR: can’t acquire proprietary interest in the COA or subject matter of litigation (but ok get a lien or have contingency fee)

CA: no similar rule! BUT can’t get a financial interest in ac ase that woudl be adverse to C, w/o C’s informed written consent

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17
Q

giving financial assistance to C: CA vs MR

A

MR: can’t give $ to C in connection w litigation except advancing costs OR paying costs if C indigent

CA: broader than just litigation. OK pay C’s personal or business expenses when:

  • -C consents + L pays 3rd party w funds from rep
  • -following employment, L lends $ to C who has agreed in writing to repay
  • -L is advancing costs + repayment contingent on outcome
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18
Q

payments from 3rd parties: CA + MR

A

can’t accept payment from 3rd party unless

  • -no interference w L’s independence or rship
    • C information kept confidential
  • -C gives informed written consent (unless: public agency or nondisclosure authorized by law)
19
Q

concurrent conflicts: CA + MR

A

can’t rep C if concurrent conflict:

1) rep is directly adverse to another C in same or separate matter, OR
2) significant risk that L’s rep of new C would be materailly limited by duty to a current C, former C, 3rd person, or L’s own interests

20
Q

concurrent conflicts: CA only

A

even if no significant risk that L’s rep of the C will be materially limited by responsibilities to another C, still can’t rep w/o written disclosure if:

1) L (or firm) has legal/business/personal/etc rship w a party or wit in same matter, OR
2) L knows or reasoanbly should know that another party’s L is spouse/parent/cild/sibling of the L, lives the the L, is client of the L/firm, or intimate personal rship

21
Q

duties to crim-Ds: CA + MR

A

if rep 2+ crim-Ds (which cant do if must take preferential action for one to help other)

no aggregate settlement or agreemtn of pleas unless informed written consent

exception: class action settlements w court approval

22
Q

prospective clients: def: CA + MR

A

PC: person who consults w L about possibility of forming L-C rship

23
Q

prospective clients: CA

A

L can’t use / reveal info learned from prospective C or repping C w interests materially adverse

  • -in the same or related matter
  • -if L received info from the PC that could be significantly harmful in the matter
    (exception: IWC)

–other L in firm can rep?: only if took reasonable measures to avoid exposure to info + timely screened from fee + participation + written notice to the PC

24
Q

sexual relations w client: CA + MR

A

can’t do it unless married or had consensual rship before L-C started

25
Q

imputed disqualification: firms: CA + MR

A

Ls in firm can’t knowingly rep a C if any one of them practicing alone couldn’t bc of conflicts w current or former clients.

exceptions:

1) it’s a personal interest conflict
2) conflict is due to L’s former rep w former firm or individually + screened + inform C in writing

26
Q

imputed disqualification: firms: CA

A

ok for firm to rep person w interest materially adverse to those of a former client of a L who’s no longer w the firm, unless
–same or substantially related matter + a L still w the firm has confidential info

27
Q

imputed disqualification: CA + MR: waiving

A

all waivable! IWC

28
Q

imputed disqualification: gvt ees: CA + MR

A

L can’t rep a C in a matter in which L participated personally + substantially as public officer or ee, unless agency gives IWC

–other Ls from the firm can only do if screened (inc fee) + written ntc to gvt

29
Q

imputed disqualification: gvt ees: CA only

A

criminal prosecutor can’t participate in defense of an action after participating in prosecution of the same action –> misdemeanor + disbarment

30
Q

restrictions on right to practice: MR + CA

A

can’t have employment agreements that restrict L’s right to subsequently practice (or to settle controversy)

exceptions: ok if part of disciplinary agreement, or probation following disciplinary proceedings

31
Q

media rights: CA vs MR

A

MR: no media rights prior to conclusion of rep

CA: no special rule just the general conflict principles (can’t use C’s confid info w/o C’s IWC)

32
Q

org client: CA vs MR

A

when L employed by an org, L represents the org acting through its authorized consituents – the C is the org.

ok to rep constituents, BUT must explain who you’re repping if it’s unclear to ee

33
Q

org client – reporting up – MR + CA

A

if L knows that officer/ee acts is/will violate legal obligation + likely to result in substantial injury + in best interest then

must report up

34
Q

org client – reporting out – MR vs CA

A

MR: may report out if necessary to prevent substantial injury to org

CA: NO! can’t reveal any confidential client info (unless another fed/state law like whistleblower) –> only can resign or withdraw after informing highest autority

35
Q

org client – exception – MR vs CA

A

MR: dnn to report up / out if defending org or an officer against a claim for violating law

CA: no such exception

36
Q

duty of confid: CA vs MR (CA exception)

A

CA: ONLY exception: MAY reveal to extent reasonably believes nec to prevent criminal act –> likely result in death/SBI
(first must: try to persuade to not commit + inform re dec to reveal) + only reveal as much info as nec to prevent

37
Q

duty of confid: CA vs MR (MR exceptions)

A

MR has other exceptions that CA DOES NOT HAVE:

1) C gave informed consent
2) impliedly nec to carry out rep
3) prevent reasonably certain death/sbi
4) prevent crime or fraud substantial injury to finances of another + using atty services in furtherance
5) prevent past crime/fraud that atty’s services were used in
6) getting advice about the rules
7) L-C controversy
8) comply w law/cout order

BUT: have implied some exceptions (L-C controversies + not furthering evading felony arrest)

38
Q

L-C priv: CA

A

includes preliminary consults before hired

–includes entire communication

39
Q

L-C priv: CA exceptions

A

EXCEPTION: seeking L’s services for crime/fraud (still might violate confid tho)

  • -same exception for crime/death/sbi
  • -if L removed or altered evidence, priv dn bar revealing orig location/condition of the evidence
  • -exception for coms re will and client has died
40
Q

concurrent conflict: def

A

rep of new C would be materially limited by duty to:

1) current c
2) former c
3) 3rd person, or
4) L’s own interests

41
Q

personal conflicts: MR vs CA

A

MR: closely related to OPC by blood or marriage

CA: intimate personal rship

42
Q

competency: obligation

A 
must rep competently
can't fail to do so:
--intentionally
--recklessly, or
--repeatedly
43
Q

competency: def

A

has learning, skill, mental/emo/phys ability reasonably necessary for performing legal services

44
Q

frivolous suits: L’s obligation

A

dn file them! can’t take rep that has objective of bringing unfounded action or defense to harass someone. can’t counsel or assist C to crim/fraud

Bar PR (7 decks)

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