Med - Prof Resp Flashcards
Duty to Safeguard Property
Must hold property separate from L’s own property
Client’s funds must be kept in separate attorney trust account
Funds belonging to L cannot be deposited in trust EXCEPT (1) funds reasonably sufficient to pay bank charges (2) funds belonging to C&L but must be withdrawn at earliest reasonable time [CA]
Located in L’s office [ABA] or state of CA [CA]
L must return all client property to C upon request or at end of rep
Cannot withhold client’s case file for purposes of getting paid [CA]
COI - Imputed Conflicts
generally imputed to entire law firm & firm is disqualified
UNLESS (1) conflict is purely personal & does not materially limit rep or (2) L is properly screened when (a) conflict arises out of association w/L’s previous firm (b) L is timely screened and does not receive portion of fee (c) written notice given to former C and L does not substantially participate in matter [CA]
COI - Former Lawyer for Govt
worked personally and substantially on matter CANNOT work on same matter at private firm UNLESS govt gives consent in writing
Not be imputed if: (1) L is timely screened and doesn’t receive portion of fee and (2) prompt written notice given to govt
Proprietary Interest in Case -PR
ABA: cannot acquire proprietary interest in cause of action of subject matter of litigation UNLESS (1) acquiring a lien authorized by law to secure L’s fee or expenses or (2) K for contingency fee in civil case
CA: retaining liens not allowed
Use of Current Client’s Info
cannot use confidential info to disadvantage C unless: (1) C gives informed consent or (2) use is permitted by relevant ethical rules
Financial Assistance and Loans to Clients
Cannot provide financial assistance to C EXCEPT: (1) advancing litigation costs in contingency cases (2) advancing indigent client’s litigation (3) paying 3P from funds collected or collected with consent of C [CA] (4) personal loan after L retained, written promise to repay and compliance with relevant ethical rules [CA]
ABA: loans to clients for personal expenses are NEVER permitted
Payment of Legal Fees by 3P
3P may pay client’s legal fees if: (1) C gives informed consent (2) no interference w/L’s independence of professional judgment or lawyer-client relationship and (3) info related to representation remains confidential
CA: informed written consent does not apply to lawyer rendering legal services to public agency that provides legal services to public
Serving on Board of Client’s Org
must do so effectively AND without jeopardizing his ethical duties to the company as his client
Sexual Relations
ABA & CA: cannot have sexual relations w/current clients UNLESS consensual relationship existed before representation.
C is Org = prohibits sexual relationship w/constituent to org who supervises, directs, or regularly consults
Org as Client - Lawyer Reps Org
must act in the best interest of the org
Must explain the identity of the client when dealing w/constituent that have adverse interest
May also represent O/D/managers of org individually but must (1) abide by applicable COI rules and (2) obtain consent to dual representation
Permissive Withdrawal
May withdraw if (1) client persists on criminal/fraudulent course of action (2) C used lawyer’s services to commit a crime/fraud (3) C fails to substantially fulfill obligation after reasonable warning (4) rep rendered unreasonably difficult by C or (5) other good cause exists
ABA: may withdraw if (1) withdrawal not materially damage the C’s interest (2) C insist on taking action lawyer deems repugnant or fundamental disagreement or (3) rep will result in unreasonable financial burden
CA: may withdraw (1) C insists on claim, defensem demand that is unwarranted and cannot be supported by good faith argument (2) client freely and knowingly consents (3) inability to work with co-counsel and withdraw is best interest of C (4) mental or physical condition or (5) continuing rep will violate ethical rule.
ABA & CA: must obtain court’s approval after lawsuit has been filed
Duties to Court - Payments to Witnesses
cannot offer unlawful inducement to witness or payment contingent upon the content of testimony or outcome of case
May pay a witness for (1) expenses reasonably incurred (2) reasonable compensation for loss of time or (3) reasonable fee to expert witness
Duty of Fairness to Adversaries - Trial Publicity Extrajudicial Statements
cannot make extrajudicial statements to public on matter that (1) L knows or should know (2) will be disseminated by means or public communication and (3) will have substantial likelihood of materially prejudicing case or influencing jurors
Except statements: (1) protect C from substantial undue prejudice from recent publicity that was not self-initiated (2) claim, offense, defense, identity of persons (3) info in public record (4) inform public of ongoing investigation (5) requesting assistance in obtaining evidence (6) warning of danger and (7) certain info in criminal case
Prosecutors MUST exercise reasonable care to prevent others from making statement
Special Rules for Prosecutors
criminal cases = higher standard because duty to administer justice
May only proceed with a case if probable cause exists: (1) sufficient facts (2) lead a reasonable person to believe (3) crime was committed and (4) D committed crime
MUST timely disclose any exculpatory or mitigating evidence EXCEPT where protective order exists
MUST make reasonable efforts to assure that the accused has been advised of the right to counsel
CANNOT seek to obtain from an unrepresented accused a waiver of important pretrial rights
MUST seek to remedy conviction when knows of clear and convincing evidence that D did not commit
MUST promptly disclose new credible and material evidence that gives reasonable likelihood that D did not commit crime
Threat of Criminal, Administrative, or Disciplinary Charges
CA: L cannot threaten to present criminal, administrative or disciplinary charges to obtain an advantage in civil dispute
ABA: no rule
