duties to client Flashcards by Meghan Nihan

concurrent conflict of interest

a) representation of a client will be directly adverse to the interests of another client
b) there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of another client, former client, or third person

lawyer may obtain informed consent if:

lawyer reasonably believes he can competently and diligently represent each affected client
representation is not prohibited by law
representation doesn’t involve the client asserting a claim against another client the lawyer represents

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CA concurrent conflict of interest

lawyer may represent if the lawyer believes (need not be reas.) he can competently and diligently represent both clients;
if conflict arises out of prior relationship or lawyer’s personal interest: must give written disclosure
if conflict is from another current client: informed consent

but if former client had the conflict and lawyer would be using confidential info in a matter where the new client’s interests are adverse, need informed consent

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imputed conflicts

if a lawyer has a conflict of interest, it is imputed to all members of his firm.

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imputed conflict: former client conflicts from lawyer’s old firm carry over to a lawyer’s new firm?

the lawyer can be timely screened from participation
the lawyer must not be apportioned a fee
written notice must be promptly given to any affected former client
certifications of compliance with the screening procedures are provided to the client at reasonable intervals

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using information in a way that harms a client

an attorney may not use information relating to the representation of a client to the disadvantage of the client without the client’s informed consent

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limiting malpractice liability

a lawyer may not limit his malpractice liability unless the client is independently represented in making the agreement.

CA rule: attorney may never limit malpractice liability

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lawyer conflict of interest: settling a claim for malpractice

a lawyer must not settle a claim for malpractice liability with an unrepresented client or former client without advising the person in writing that independent counsel is desirable and giving that person a reasonable chance to consult with independent counsel

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lawyer conflict of interest: proprietary interest in the cause of action

lawyer may not acquire a proprietary interest in a client’s cause of action except:

lawyer MAY acquire a lien authorized by law to secure his fee/expenses
MAY contract with a client for a reasonable contingent fee in a civil case

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lawyer conflict of interest: literary or media rights based on the representation

a lawyer may not make or negotiate an agreement giving the lawyer literary or media rights to an account based in substantial part on information relating to the representation UNTIL AFTER REP

CA: requires trial judge to ensure that the client fully understands the conflict of interest. if he does, then he can waive the conflict and have lawyer continue to represent him

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lawyer conflict of interest: transaction with client or ownership/financial interest

lawyer may not enter into a business transaction with a client, or
acquire an ownership or financial interest that is adverse to the client unless:

-Fair and reasonable to the client
-Disclosed fully to the client in a writing that can be reasonably understood by him
-Opportunity to seek the advice of independent legal counsel & told doing so is desirable
-Client’s informed consent given & he understands lawyer’s role in transaxn
(FDOC- first discuss over coffee)

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former client conflict of interest

a lawyer who formerly represented a client in a matter may not thereafter represent another client

in the same or a substantially related matter
if that client’s interests are materially adverse to the former client
unless the former client gives informed consent

relatedly, may not use confidential information to the disadvantage of the former client or reveal confidential information

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conflicts where lawyer represents an organization

a lawyer must explain the identity of the client when the lawyer knows the organization’s interests are adverse to the constituent of the organization that he is dealing with
lawyer may represent a constituent subject to COI rules

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what a lawyer must do when someone associated with the organization proposes action that may cause substantial injury to the organization

must report the action to a higher authority, and if necessary, to the highest authority
if highest authority fails to take appropriate action, may report to persons outside the organization
CA: may not disclose info to people outside the organization unless to prevent a CRIME or substantial BODILY harm

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SEC rules

when lawyer’s client is materially violating securities law…
Must report UP
-lawyer must report the info to the CLO
if the CLO concludes a violation occurred, the CLO must make an appropriate response (remedy it, or make sure it doesn’t happen again)
-if CLO doesn’t get an appropriate response, lawyer MUST report to board of directors, audit committee, or committee of outside directors

May report OUT

may report to SEC if reas. necessary to stop client from committing a violation that will cause substantial financial injury to the client or its investors
rectify a financial injury if the lawyer’s services were used to further the violation
prevent client from committing perjury on the SEC in an SEC matter

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compensation from 3rd party

lawyer must not accept compensation unless:

client gives informed consent
there is no interference with lawyer’s professional judgment
information relating to the representation is protected

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lawyer personal conflict of interest: drafting a will/ document giving a lawyer a gift, soliciting a gift

-a lawyer must not solicit a substantial gift from a client
-must not prepare an instrument giving the lawyer or his relative a substantial gift from a client
(unless that person is also your relative)
INFORMED CONSENT DOES NOT EXCUSE

CA: can draft the instrument giving him a gift as long as he didn’t induce it

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government lawyer, judge, former law clerk to judge who moves to private firm conflict of interest- MPC

a lawyer must not represent a client

in connection with A MATTER
in which the lawyer participated personally and substantially as a government officer or employee
unless the appropriate government agency gives informed, written consent

matter = some kind of investigation or case, not drafting rules or legislation

new firm may screen the govt lawyer- must notify the govt agency

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duty to protect a client’s property

a lawyer must keep property of clients or 3rd parties separate from his own
must keep record of client funds or property
must keep client informed and deliver funds or other property to the client or a 3rd person entitled to receive it
if lawyer is in possession of funds/property a 3rd person has a claim to, must keep the disputed property separate

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duty of confidentiality

lawyer must not reveal information relating to the representation of the client
-applies even after representation ends

EXCEPTIONS

MAY reveal when you reas. believe it will prevent substantial bodily harm or death
client gives informed consent
impliedly authorized to carry out representation
necessary to prevent client from committing a crime or fraud likely to cause substantial financial loss IF client used lawyer’s services (ONLY MPC)
necessary for lawyer to collect a fee
necessary for the lawyer to assert a defense
necessary to obtain confidential legal advice about lawyer’s duty to comply w/ ethical rules
disclosure required by court order, statute, or ethics rules

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CA exceptions to duty of confidentiality

A. compelled by law or court order
B. to collect an attorney’s fee
C. to enable a lawyer to defend himself against a claim of legal malpractice, ineffective assistance of counsel, or other wrongdoing
D. OPTIONAL to reveal to prevent the client from committing a crime that will cause substantial bodily injury or death
BUT FIRST:
1) make good faith effort to dissuade client
2) tell the client you will reveal

duty of competence

legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
I) knowledge- lawyer’s skill, training, experience, amt of time that can be devoted to learning an area he is unfamiliar with

subduties

a) must act with diligence and promptness in responding to a client
b) must keep client reasonably informed about status of the matter and respond to requests for info

mandatory withdrawal

representation will result in violation of RPC or law
lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client
the lawyer is discharged

CA mandatory withdrawal

lawyer knows or should know the client is acting without probable cause and to harass another person
representation will result in violation of RPC
note: need not withdraw if violates the law

permissive withdrawal

withdrawal can be accomplished without material adverse effect on the client’s interests
client persists in a course of action involving the lawyer’s services that the lawyer believes is criminal or fraudulent
client has used the lawyer’s services to commit a crime or fraud
client insists upon a course of conduct lawyer finds repugnant or that the lawyer has a fundamental disagreement with
client has failed to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless it is fulfilled
unreasonable financial burden on the lawyer
other good cause

CA: no withdrawal based on unreasonable financial burden, past crime/fraud, no material adverse effect

lawyer must not withdraw if

court orders the lawyer to continue representation notwithstanding good cause for termination of the representation

duty of loyalty

lawyer owes a duty of loyalty to client. | i.e. must not have COI

duty of care

lawyer must use the care, skill, and judgment a reasonably prudent general practitioner would use in the circumstances breach leads to malpractice, not discipline

CA concurrent conflict of interest rule for representing an insurance co's policyholder and suing the insurance company in another case

no conflict, as long as the insurance company's interest in each case is just as an insurance provider. ex: Mercury Insurance hires you to represent their driver. In a different case, you can be on the opposite side from Mercury Insurance and another one of their drivers

two clients in different cases with conflicting positions

-usually does not pose an issue | unless 1 disadvantaged because creates precedent

imputed conflicts- firm approached with new client who has a conflict w/ a former client of a lawyer who has since left the firm

an attorney remaining may represent unless: i) matters substantially related or the same ii) any remaining lawyer has confidential, material information

CA rule for govt employees

CA only prevents a prosecutor from later serving as defense counsel

lawyer personal conflict of interest: relatives | *CA difference

must not oppose a party represented by your close relative (brother, father, spouse) INFORMED CONSENT MAY EXCUSE CA has same rule but also adds "intimates" including roommates and people w/ close personal relationship to you

lawyer conflict of interest: sexual relations with client | *CA difference

Lawyer must not have sexual relationship with client. Consent/ lack of harm immaterial. NO INFORMED CONSENT CA: lawyer just can't i) demand sexual relations as a condition of rep; ii) enter into sexual relations by coercion or undue influence; iii) represent a client incompetently b/c of sexual relationship

financial duty to client: fee agreement | *CA difference

must state how fee is calculated services covered lawyer and client's duties CA: fee agmt must be written. exceptions: 1) less than $1,000 2) corporate client 3) routine services for regular client 4) emergency situation

financial duty to client: contingent fee agreement, when contingent fees permissible *CA difference

MPC allows in: all cases but divorce or crim CA allows in: all cases, even divorce, so long as they don't promote dissolution of marriage. MPC- agreement must state: - percentage to be paid to buyer - what expenses to be deducted from recovery - whether the percentage is deducted before or after expenses CA: must also state how work not covered by contingency will be paid; lawyer's fees negotiable

*financial duty to client: limits on fees

MPC: Fees must be reasonable. Factors: Labor; novelty; difficulty; skill required; time required; result obtained; experience of lawyer CA: fees must not be unconscionable

if a lawyer who works on contingency is fired

he gets the reasonable value of his services if the client later wins the case

financial duty to client: method of resolving disputes | *CA difference

MPC: arbitration CA: arbitration if the client requests it

financial duty: splitting fees with outside attorneys | *CA difference

may not pay another attorney a fee for suggesting you. attorney can only divide fees w/ outside atty if: 1) proportional to the work that person did OR 2) other percent if that person assumes joint responsibility for the representation may use a referral service CA: allows referral fees if client knows & consents; total fee not unconscionable

lawyer conflict of interest: rule for payment by 3rd party

client gives informed consent payor does not interfere w/ lawyer's ind. judgm. info relating to rep remains confidential unethical to accept payment from 1 client who tries to use the fact he is paying to control others

*financial duty: splitting w/ nonlawyers

MPC: no fee splitting with nonlawyers. | except- paying benefits owed to a lawyer to his heirs; paying salaries to nonlawyer employee

partnership with nonlawyers

prohibited. can't be partners, shareholders, officers

law related services

if you personally provide them in addition to your law practice, the legal rules apply to the law related services too. if you provide law related services in a separate entity, must notify clients that the rules don't apply

duty to protect client's property | *CA difference

1) Must hold client's property in lawyer's possession separate from own property: a) funds- separate account from personal b) other property- mark as client's and safeguard 2) advances must be put in client trust account 3) lawyer must keep records of funds and prop. * CA- keep for 5 years 4) promptly deliver property or funds to the client or 3rd party 5) if client disputes fees owed to the lawyer, lawyer must keep that amt separate

duty to disclose professional insurance

ABA suspends you administratively for not having | CA requires you to disclose lack of insurance to clients who hire you for >4 hours work

accepting representation

lawyer is free to accept or refuse any case. SHOULD however accept pro bono work, and needy people if only reason to refuse is selfish MUST reject rep if it violates rule of ethics- ex: violating the duty of competence by not being in mental shape for it

scope of rep

client decides whether to settle, whether to testify in a criminal case lawyer makes strategic decisions

duty to communicate

- a lawyer must keep a client reasonably informed about the status of a matter - must explain a matter to the extent reasonably necessary to allow client to make informed decisions