Professional Responsibility Flashcards
Main duties to clients (4)
(1) Confidentiality
(2) Loyalty
(3) Financial Responsibility
(4) Competence
Main duties to non-clients (3)
(1) Candor/Truthfulness
(2) Fairness
(3) Dignity/Decorum
Duty of confidentiality
Lawyers may not reveal anything related to the representation of a client or use that information against her without her consent.
Exceptions to duty of confidentiality (3)
(1) consent (express or implied)
(2) defending yourself
(3) required by court order, law, or ethical duties
Revelations to prevent death or serious bodily harm
Must (1) make good faith effort to persuade client not to commit act and (2) (IN CALIFORNIA) inform client of decision to reveal
Duty of loyalty
Attorneys have a duty of loyalty to their clients. If an interest of another client, yourself, or a third party materially limits or is adverse to representation you have a conflict of interest
Imputed disqualification
Lawyers who work together closely or share responsibilities also share each others conflict (can erect ethical wall, though)
Waiving conflicts (3)
Case-by-case factual determination requiring:
(1) attorney reasonably believes he can represent everyone effectively
(2) attorney informs each effective client (may be impossible with duty of confidentiality)
(3) client consents (atty writing confirming client’s oral consent sufficient for ABA, but CA requires client’s written consent)
Government lawyer standard
Conflicted off of matters on which gov’t lawyer worked “personally and substantially
Business transactions with / adverse interests to clients (4)
(1) terms are fair to client
(2) terms disclosed in understandable writing
(3) client advised to consult outside lawyer
(4) client provides written consent
Disclosure of securities violations
MANDATORY to report to CEO or chief legal counsel (and keep going up chain if no response)
PERMISSIVE to go to SEC
Fee agreements
Must be in writing unless (1) < $1,000 fee, (2) w/ corporate client, (3) routine services with regular client, (4) emergency or impractical
Contingency fee agreements (5)
Must include:
(1) Percent
(2) Expenses deducted from recovery
(3) Whether percent is taken before or after expenses
(4) CA ONLY: How work not covered by contingency will be paid
(5) CA ONY: That lawyer’s fees are negotiable
Limitations on fees
ABA: Must be reasonable
CA: Must not be unconscionably high
Fee splitting
Lawyers in firm: OK
Lawyers outside firm: OK if (1) total fee is ethical, written disclosure, client consent, and (ABA ONLY) division is proportional to work done
Non-lawyers: NOT OK (unless death benefits for deceased lawyer, salaries for non-lawyer employees, legal fees with non-profit org that employed or recommended firm)
