Duties; Duties Owned to Client: Confidentiality; Conflicts of Int Flashcards
(47 cards)
1
Q
Duties owed to Client
A
- Confidentiality
- Loyalty
- Financial Responsibility
- Competence
- and other reasonable things
2
Q
Entities other than your Client:
A
- Court
- Adversaries
- Legal Profession
- Third Parties
- Public
3
Q
Duties owed to entitites other than your client:
A
- Candor/Truthfulness
- Fairness
- Dignity/Decorum
- and other reasonable things
4
Q
THE DUTY OF CONFIDENTIALITY TO YOUR CLIENT
General rule:
A
Don’t reveal anything related to the representation of a client or use that information against her without her consent.
5
Q
Scope of the duty of confidentialy owed to a client:
A
The duty of confidentiality applies regardless, whether the
client requested it be kept “confidential” or whether itsm revelation might harm or embarrass the client.
6
Q
What should an attorney do to keep his client’s information confidential?
A
Use reasonable electronic security to prevent inadvertent access to or disclosure of client confidences.
7
Q
When does the duty of confidentiality to a client attach and how long does it run?
A
- It can attach before a lawyer-client relationship is formed, or even if none was formed.
- Once attached, your duty of confidentiality continues, even after formal representation ends, and even after death!
8
Q
Distinguish Attorney-Client Privelege from Confidentiality:
A
- Attorney-Client privilege, the overlapping, but narrower evidence rule that allows the client to prevent you from testifying about confidential communications from her to you.
- Condfidentiality is broader: It applies regardless of the source of the information, to anything not generally known, and to disclosures beyond the representation that could reasonably lead to information about it.
9
Q
Exceptions to Duty of Confidentiality
A
- consent
- defending yourself
- If compelled by final court order, law, or other ethical duties.
10
Q
Consent exception to confidentiality:
A
- if the client consent, you may reveal otherwise confidential information.
- You also have Implied consent to reveal what’s necessary to render your legal services.
11
Q
When may you reveal confidential client information under the exception of defending yourself?
A
Your client
- sues you for malpractice,
- brings disciplinary actions against you,
- and refuses to pay you, forcing you to sue him for your fees.
All of these circumstances, as well as seeking an ethics opinion, fall into the exception for revealing information necessary.
12
Q
What client information may you disclose when moving to a new law firm?
A
you may disclose without client consent non-privileged, minimal information for a conflicts check when moving to a new law firm.
13
Q
Your duty to uphold the law allows revelations to prevent:
A
- Death or substantial bodily harm.
- Fraud or crimes causing financial injury.
14
Q
In CA, what shall a lawyer do when the client threatens death or serious bodily harm:
A
In CA you must first, if reasonable in the circumstances,
- make a good-faith effort to persuade your client not to commit the act, and
- inform the client of your decision to reveal his confidences.
15
Q
ABA vs CA on disclosing confidential information to prevent Fraud or crimes causing financial injury:
A
- ABA: You may reveal client’s confidential information if the client is using your services to commit the crime and the disclosure would prevent or mitigate substantial financial loss
- CA: No financial exceptions
16
Q
THE DUTY OF LOYALTY TO YOUR CLIENT: CONFLICTS OF INTEREST - The black letter law:
A
You have a duty of loyalty to your client. If an interest of another client, yourself, or a third party materially limits or is adverse to representation, you have a conflict of interest
17
Q
What type of conflicts should you discuss?
A
- potential
- and actual
18
Q
CA on potential and actual conflicts:
A
CA strictly requires consent for a potential conflict and an additional disclosure and consent if it ripens to an actual
conflict.
19
Q
Ignorance of a conflict…
A
is no excuse, unless it arises from short-term legal services under a court, agency, or non-profit program.
20
Q
What’s “imputed disqualification”?
A
any group of lawyers that work together closely or share responsibilities share each others’ conflicts are imputed, e.g., private firms or corporate law departments.
21
Q
ABA vs CA Exceptions to Imputed Conflicts
A
- ABA: If a colleague’s previous government service or work for adverse parties at a previous firm conflicts her out of specific work, you may still be allowed to take that work with safeguards such as screening the colleague with the conflict behind an “ethical wall”
- CA: CA does not impute purely personal conflicts to
colleagues, and disqualifies, but does not discipline, a lawyer for imputed conflicts.
22
Q
ABA: conflicts MAY be tolerated if:
+ CA Caveats
A
A case-by-case factual analysis establishes 3 elements:
- You reasonably believe you can represent everyone effectively
- you inform each affected client; and
- If your duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict, then consent may not be possible
- CA does not require the belief be objectively reasonable
- The client consents, confirmed in writing
- Your writing to the client memorializing her oral consent is sufficient for the ABA.
- CA requires the client consent itself be in writing, unless the conflicts are only personal to you, in which case only your written disclosure, and no client consent, is required.
23
Q
Conflicts between or among Clients situations:
A
- Opposite sides in the same proceeding before a tribunal.
- Opposing a current client in another matter.
- Two clients with inconsistent positions.
- Representing multiple clients in the same matter raises significant risks that your service for one may become materially limited as a result of the others’ interest.
- New clients in matters related to former clients’.
- Former government lawyer that moves to private practice.
24
Q
Rule for when your clients are Opposite sides in the same proceeding before a tribunal.
A
Because of imputed disqualification, you cannot represent opposing parties in the same matter
25
ABA Rule and CA Exception for when your clients are Opposing a current client in another matter:
* ABA: A representation adverse to a current client
in a different matter requires all clients' consent
* CA Statutory exception: there is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where the insurer’s interest in each matter is only as an indemnity provider
26
Rule for when you have Two clients with inconsistent positions
* Example: You need to argue both for and against the Managed Care Act in two different appeals.
* It is ok if the positions do not create a conflict
* but if either client would be disadvantaged you must obtain consent.
27
Rule for when Representing multiple clients in the same matter raises significant risks that your service for one may become materially limited as a result of the others’ interest.
* These potential conflicts generally require disclosure and consent. Examples are representing:
* Both spouses in an uncontested divorce or drafting wills.
* A corporation and any of its directors, officers, shareholders, or employees;
* Best remedy for this actual conflict in this situation:
* Withdraw from both and advise them to get seperate counsel
* You must withdraw from at least 1, stay with the one with which you have the confidential info
28
Rule for New clients in matters related to former clients’.
* If confidential information from a former client might be relevant to a new client’s matter, you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client
* Ask: Do the representations overlap in function, scope or information?
* Rule: You cannot take on a new client with interests materially adverse to a former client without the former's consent
* likely not a problem if you are a limited partner
* Also, Using non-public confidential information against a former client is unreasonable
29
Rule for Former government lawyer that moves to private practice.
If you were a government lawyer who worked "personally and substantially" on a “matter,” the ABA bars you from
working on that same “matter” in later private practice without the government’s consent.
30
For the former government employee that moves to private practice rule, what is a Matter?
a specific dispute between specific people over specific issues.
* writing regulations is not a matter
31
Imputed disqualification, for former government employees who moved to private practice, on their colleages
three ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers: All 3 must be met
1. you are screended off; and
2. You do not share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); and
3. your government employer is informed
32
What is a 3rd party neutral in a case?
Judges, clerks, arbitrators
33
Third-party neutrals and former government employees.
What if you were a 3rd party nuetral (Judges, clerks, arbitrators) on a case involving your former government employer?
CA vs ABA
* ABA: nuetral needs consent of all parties
* CA: explicity disqualifies a prosecutor in a case from later working on the defense side of that case.
* CA is silent on civil cases, but case law allows screening like the ABA.
34
Conflicts between lawyer and client
1. Gifts to the Lawyer
2. Limiting Liability
3. Publication Rights Contract
4. Use of Information
5. Loans to Your CLient
6. Business transactions or adverse interests
7. Trial counsel as a necessary witness
8. Close relationships with your adversary’s lawyer
35
Rule for Gifts to the lawyer.
You must not solicit a substantial gift from a client, or draft a legal instrument for a client who is not your close relative, if it provides a substantial gift to you or your relative
36
Rule for Limited Liability for Conflicts between Lawyer and CLient and CA Caveat
You cannot limit your client’s right to report you for professional misconduct or to cooperate in an investigation. You cannot limit your malpractice liability when you enter into a relationship with your client, unless, under ABA Rules, the client is independently represented in making the agreement.
* CA bars malpractice limits.
* —If a client makes a malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first.
37
Publication rights contracts: CA v ABA
Halfway through his criminal trial, Defendant offers to sell you rights to his story to raise some needed cash. Can you accept?
* ABA: not before representation has ended
* CA: Maybe - CA case law discourages contracts during proceedings, but allows them if the judge is satisfied that the client clearly understands and consents.
38
Use of Information Rule
Use of confidential information to a client’s disadvantage,
without her consent, violates the duties of both loyalty and confidentiality.
39
Loans to Your Client:ABA v CA
* The ABA forbids all financial assistance, except litigation expenses for an indigent client and the advance of litigation expenses in Contingent Fee Cases
* CA forbids promises to pay a prospective client’s debts, but allows loans to a client in all matters for any purpose with a written loan agreement
40
Business transactions or adverse interests with the client rule
You may enter into business with a client or obtain an
interest adverse to hers only if:
1. the terms are Fair to the client,
2. Disclosed in understandable writing,
3. the client is advised to consult an Outside lawyer, and
4. your client provides Consent in writing.
41
Business transactions or adverse interests with the client rule for Board Service
Service on the Board of Directors of a non-profit legal services organization is allowed. There is also no bar to sitting on the Board of a corporate client, but it is now discouraged, because it is likely to compromise loyalty and confidentiality
42
Trial counsel as a necessary witness.
ABA & CA caveat
* The ABA Rules bar you from appearing ascounsel and witness in the same trial unless:
1. your testimony is uncontested or
2. about your legal services rendered or
3. if your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might prejudice the client, consent is required, and the conflict is imputed to colleagues
* CA is less restrictive:
* you may testify in any bench trial, and—if the client consents—in a jury trial
43
Close relationships with your adversary’s lawyer.
CA v ABA
* ABA: You can’t oppose a party represented by your relative without client consent.
* “Close relations” include immediate family: i.e., your parent, child, sibling, and spouse
* CA explicitly recognizes other “intimates.” As a purely personal conflict, it requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party or witness
* This purely personal conflict is not imputed to colleagues, nor is a sexual relationship with the client
44
Conflicts due to Third Party interference. General Rules
* Your sole duty is to your client, not to any 3rd party.
* Payment for your services from a third party is permitted only with informed client consent. Confidences cannot be shared.
45
Conflicts due to Third Party interference - Organizational Clients
A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
46
Conflicts due to Third Party interference - Organizational Clients - Federal laws govern securities lawyers: You are in-house counsel at Reron. You discover the Chief Operating Officer materially violated securities laws. You Must:
* Report the matter to the CEO or Chief Legal Counsel. If they do not respond, you must go to the highest authority in the company.
* if you reasonably believe it necessary to prevent fraud, perjury or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the Securities Exchange Commission without client consent.
47
Conflicts due to Third Party interference - Organizational Clients - Federal laws govern securities lawyers: CA v ABA
* ABA Rules similarly mandate “reporting up,” and permit limited “reporting
out.”
* CA’s more restrictive confidentiality rules are preempted by the federal
securities law.
