Duties To Clients

Question 1

What duties does a lawyer owe to his clients?

Answer 1

Confidentiality
Loyalty
Financial Responsibility
Competence

Question 2

The Duty of Confidentiality

Answer 2

Don’t reveal anything related to the representation of a client or use that information against her without her consent

Question 3

Timing of Duty of Confidentiality

Answer 3

Duty can attach before a client-lawyer relationship is formed

Once attached, your duty of confidentiality continues after representation ends.

Question 4

When does attorney-client privilege end in CA?

Answer 4

With probate

Question 5

Exceptions to the duty of confidentiality

Answer 5

1. Consent
2. Defending yourself
3. Compelled by Court Order, law or ethical duties

Question 6

Defending yourself exception to duty of confidentiality

Answer 6

Applies when:

(1) Your client sues you for malpractice
(2) Your client refuses to pay you, forcing suit
(3) Your client brings disciplinary action against you
(4) Seeking an ethics opinion

You may reveal information necessary to establish your claim for defense

Question 7

Compelled by court order, law or ethical duties exception

Answer 7

You made disclose without client consent non-privileged minimal information for a conflicts check when moving to a new firm

Question 8

Death or Substantial Bodily Harm Exception

Answer 8

You may disclose what is necessary if you reasonably believe it will prevent reasonably certain death or substantially bodily harm

CA = criminal acts

You must if reasonable in the circumstances make a good faith effort to persuade your client not to commit the act

CA = also inform client of decision to reveal confidences

Question 9

Fraud or crimes causing financial injury exception

Answer 9

You may use confidences to prevent future crimes if client used or is using your services to commit the crime and the disclosure would prevent or mitigate substantial financial loss

CA = no financial exception

Question 10

Duty of Loyalty

Answer 10

You have a duty of loyalty to your client. You have a conflict of interest if your representation is directly adverse to another client or if there is a significant risk that your representation will be materially limited by your relationship to another current or former client your personal interest or a third person

Question 11

Imputed Disqualification

Answer 11

Any group of lawyers that work together closely or share responsibilities or share each other’s conflicts

May be able to overcome with safeguards such as screening colleague with the conflict behind ethical wall

Question 12

Remedies for Unconsented Conflict

Answer 12

You may refuse to take the case, advise multiple clients to get separate counsel or withdraw

Question 13

Conflicts May be Tolerated If

Answer 13

1. You reasonably believe you can represent everyone effectively despite the conflict and
2. You inform each affected client. If your duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict then consent may not be possible and
3. The client consents confirmed in writing

CA = both your disclosures and consent must be in writing

Question 14

Conflicts Between or Among Clients

Answer 14

1. You can never represent opposing parties in the same matter.
2. You can oppose a current client in another matter only with informed reasonable consent of all clients.
3. You can represent two clients with inconsistent positions (for and against X in two different appeals)
4. Representing multiple clients in the same matter usually raises a significant risk that your service for one may become materially limited because of others interest
5. You cannot take on a new client in the same or substantially related matter where her interests are materially adverse to the former client without the former’s consent
6. If you were a government lawyer who worked personally and substantially on the matter you cannot work on that same matter in private practice without the government’s consent. Third party neutrals need consent of all parties.

Question 15

Exception to imputed disqualification of colleagues of former government lawyers

Answer 15

1. You are screened off
2. You do not share any part of the fee in the matter
3. Your former government employer is informed

Question 16

Conflicts between Lawyer and Client

Answer 16

1. You must not solicit a substantial gift from a client or draft a legal instrument for a client if it provides a substantial gift to you or your relative
2. You cannot limit your clients right to report you for misconduct or to cooperate in an investigation. You cannot limit your malpractice liability unless the client is independently represented and making that agreement.

CA bars malpractice limits

If a client makes malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first

Question 17

Conflicts between Lawyers and Clients Business Transactions/Adverse Interests

Answer 17

You may enter into business with a client or obtain an interest adverse to hers only if the terms are fair to the client; disclosed in understandable writing; the client is advised to consult an outside lawyer; and your client to provide consent in a signed writing

Payment in shares of stock equal to value of services is ok if work is valued reasonably (under circumstances known to lawyer when interest acquired) and documented

You may serve on the board of directors of a nonprofit legal services organization, but sitting on the Board of a Corporate client is discouraged

Question 18

Publication Rights Contracts

Answer 18

Cannot publish before representation ended

CA = Can contract during proceeding if judge is satisfied

Question 19

Loans to Clients

Answer 19

ABA Forbids all financial assistance except litigation expenses for an indigent client and advances which may be forgiven under a contingent fee arrangement

CA allows loans to existing client for any purpose but with written loan agreement

Question 20

Trial Counsel as a Necessary Witness

Answer 20

You cannot appear as counsel and witness in the same trial. Except:

When testimony is: 1. Uncontested or 2. About your legal services rendered

ABA also allows when your distinctive value to the case means withdrawal would impose substantial hardship on client. If testimony would prejudice client, consent required

CA = Dual role allowed in any case with client consent

Question 21

Close Relationships

Answer 21

If the opposing parties lawyer is a member of your immediate family it requires all clients’ consent

CA = Also if opposing lawyer is intimate or cohabitant or firm client

CA = Written disclosure of any personal, legal, business, financial, or professional relationship you or your colleagues have with any party or witness

Question 22

Third party interference

Answer 22

Your sole duty is to your client not to any third-party.

Payment for your services from a third-party is permitted only with informed client consent

For organizational clients, a lawyer must act in the best interest of the entity, including reporting-up.

If you believe it necessary to prevent fraud, perjury or substantial injury to the organizations or investors or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the SEC without client consent

Question 23

Attorney Fees - Non-contingent

Answer 23

In non-contingent fee cases, agreements must include how the fee is calculated what services are covered and a lawyer and clients’ duties

CA = also has to be in writing unless less than $1000, with a corporate client, for routine services with a regular client, it’s an emergency or impractical

Question 24

Attorney Fees Contingent

Answer 24

Fee agreements must be in writing signed by the client and contain your percent, what expenses will be deducted from the recovery, whether your percent is taken before or after expenses, how work not covered by the contingency fee will be paid, and that lawyers fees are negotiable

CA = You must also inform your client in writing if you do not have professional liability insurance or later if you lose it

Question 25

Limits on Contingency

Answer 25

Contingent fees are not allowed in criminal and domestic relations cases. They are allowed in collateral actions to collect post to judgment orders in domestic matters You can recover reasonable fees if there is a termination before judgment

Question 26

Setting Fees

Answer 26

Fees must be reasonable taking into account the labor, novelty, difficulty, skill and timing required, results obtained, the experience of and demands of the attorney and the fee arrangement CA = fees must not be unconscionably high If client disputes fee, ABA = arbitration CA = lawyer must participate in fee arbitration if client sued and requests it

Question 27

Double Billing

Answer 27

CA allows if: - The fee charge to each is not unconscionable - The attorney clearly disclosed the billing practice at the outset of the relationship - obtained the clients’ consent

Question 28

Fee Splitting

Answer 28

- Ok to split with lawyers in your firm - Can split with lawyers outside your firm if total fee ethical and not increased from sharing, and the agreement/disclosure to client/consent are all in writing ``` ABA = fee division must be proportional to work done CA = does not have to be proportional if not unconscionable or increased, and client consents ``` - Fee splitting with non-lawyers is not allowed unless death benefits paid to a deceased lawyers firm for his work; nonlawyer employees salaries and sharing of court awarded legal fees with a nonprofit organization that employed or recommended you - Partnership with nonlawyers in providing legal services is prohibited

Question 29

Client Trust Account

Answer 29

1. You have a duty to safeguard your clients property by labeling and storing it in a safe place 2. Put money held for your client in a client trust account. Never commingle client funds with your personal money - Use an interest-bearing trust account to hold the client funds - If a clients funds are too small to cover bank charges deposit them together with other clients money in a pooled client trust account. The interest goes to the state bar for services for the poor - Get client consent to pay third parties from the clients money - You must withhold the disputed amount in the client trust account until resolution in a fee dispute or lawful claim over client’s funds - You must keep records of clients property for five years after final distribution - You must notify your client of money received on his behalf and paid promptly money due to him

Question 30

Duty of competence

Answer 30

You have a duty to render competent service to your client. Competence is using the legal knowledge and skill thoroughness and preparation reasonably necessary for representation CA = Includes mental emotional and physical ability Incompetence exposes you to discipline by the bar, disqualification any litigated matter, and civil malpractice liability

Question 31

Duty of diligence

Answer 31

You have a duty to diligently and promptly pursue your case to completion

Question 32

Duty to communicate

Answer 32

You have a duty to keep your client informed about the case; answer client communications; and convey settlement offers or significant developments. If the settlement offer is made to joint clients, convey the offer to all and make sure they agree on the division of settlement before accepting

Question 33

You must reject a case if

Answer 33

Taking it would violate a law or ethical rule

Question 34

Scope of representation

Answer 34

The client makes decisions about her substantive rights you make decisions on legal strategy. If you disagree you may limit the scope of representation with a client consent. You may discuss the legal consequences a proposed conduct but never assist the client with conduct you know is criminal

Question 35

Mandatory withdrawal

Answer 35

You must withdraw from a pending case if fired or if continuing with violate a law or ethical rule CA = Requires withdrawl if a client acts without probable cause and to harass or maliciously injure another

Question 36

Permissive withdrawal

Answer 36

You may withdraw from a case if you convinced the court there is a good cause ABA Permits withdrawl when representation will unreasonably financially burdened you or if it won’t hurt the clients interests

Question 37

To quit you must

Answer 37

Provide a timely notice to the client and promptly return any unspent fee and expense advances and all of the clients property and material papers