Legal Ethics Flashcards
(55 cards)
Duty to Report
Under the ABA, a lawyer who knows that another lawyer has committed a violation to he Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.
There is no corresponding rule in california.
Must KNOW about the violation
Duty to report exceptions
- Cannot report if disclosing information violates duty of confidentiality
- Learned of violation while participating in an approved lawyer’s assistance program (i.e. counseling efforts for substance abuse, etc)
Choice of law in Disciplinary Proceeding
For conduct connected to a case, rules of the jdxn where case is adjudicated applies
For other conduct, rules of the jdxn where the conduct occurred applies.
Safe Harbor: A lawyer not subject to discipline if conduct proper in jdxn where she believes predominant effect of her conduct will occur
Activities that constitute practice of law
Appearances at judicial proceedings and depositions
Drafting documents that affect substantial legal rights
Negotiating settlements
Giving legal advice to clients
Duty of Confidentiality
Ethical duty that prohibits you from revealing confidential information in any setting without client consent, and applies to all information relating to representation
Duty of confidentiality ends
Can attach before a relationship is formed, or even without a relationship.
Once attached, your duty of confidentiality continues, even after formal representation ends, through the client’s lifetime.
Exceptions to duty of confidentiality under ABA
- prevent reasonably certain death or substantial bodily harm
- consent or implied authority
- prevent substantial financial harm
- compelled by court, ethics, law
- malpractice defense
- collect attorneys fees
- seek ethics advice
- address conflict from change in lawyer’s employment
Types of Conflicts of Interest
- Direct adversity
2. Materially limited representation
Even if representation at risk of material limitation, OK if
A Lawyer may still represent the client if:
(1) the lawyer reasonably believes that she can competently and diligently represent the client,
(2) the representation is not prohibited by law,
(3) representation does not involve asserted a claim that is directly adverse to another client, and
(4) the parties have given consent, confirmed in writing. (CA requires informed written consent).
CA written disclosures requirement
California requires additional disclosures where if a lawyer has personal, legal, business, financial, or professional relationship with a party, a witness, or the other lawyers, the lawyer must provide written disclosures to the client even if there is no significant risk that the relationship would materially limit representation
Conflicts with Joint Representation:
The nature of joint representation creates a significant risk that the representation of each client will be materially limited by the interests of the others
Business Transactions
OK If (1) terms fair and reasonable to client, (2) terms are in writing, (3) attorney advises client in writing to seek counsel, and (4) client gives informed written consent
Sexual Relationship
Under the ABA, a lawyer must not have sexual relationship with a client unless the relationship was established BEFORE the lawyer-client relationship began.
CA allows for an additional exception when a lawyer and client are spouses or registered domestic partners.
Third Party Payment
A lawyer must not accept compensation for representing a client from someone other than the client unless
(1) the client gives informed consent (CA requires in writing),
(2) there is no interference with the lawyer’s independence of professional judgement or with lawyer-client relationship, and
(3) client information remains confidential
Duty of Competence ABA
Under the duty of competence, a lawyer must act with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation (this includes the duty to communicate and duty of diligence). A lawyer may become competent in a field through adequate preparation.
Duty of Competence CA Add’t Requirements
California recognizes mental, emotional and physical ability in determining competence
Duty to keep abreast of changes in the law and its practice, including benefits and risks associated with relevant technology
Duty to Communicate
A lawyer must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
• All settlement offers MUST be conveyed to the client.
Sarbanes Oxley Act
Under this act, lawyers who reveal information to the SEC cannot be held civilly liable or disciplined for inconsistent rule statements
Attorney Client Privilege
This is an evidentiary privilege that allows a CLIENT to refuse to testify and prevent his attorney from testifying in court about confidential COMMUNICATION between the two or their respective agents. attaches and applies even if a lawyer is subsequently removed from a case
Attorney Client Privilege with Corporation in CA
In the corporate context, the attorney-client privilege, in California, protects communications made by a spokesman for the corporation or by someone whose actions could be imputed to the corporations for purposes of liability
Noncontingent Fee Agreement ABA
ABA does not require writing for non contingent fee agreements.
NonContingent Fee Agreement CA
California requires written fee agreements if the fee will exceed $1,000, except if: (1) the client is a corporation, (2) the client states in writing that he does not want a fee agreement, (3) the client has previously received and paid for the same kind of legal services, (4) the lawyer acted in an emergency to protect the client’s rights, or (5) a writing was impractical.
Contingent Fee Agreement
This type of agreement must indicate litigation and other expenses to be deducted from the recovery, and whether such expense are to be deducted before or after the contingent fee is calculated.
Financial Assistance to Client under ABA
ABA prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated LITIGATION unless
(1) lawyer is advancing litigation costs, where repayment is contingent on outcome,
(2) lawyer representing indigent client may pay court costs, and
(3) where lawyer is representing a pro bono client, then can give clien modest gift.
