Obligations to the client Flashcards
DUTY OF COMPETENT REPRESENTATION
- lawyers must act competently and with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
i. can result in discipline, disqualification and civil malpractice - CA: the lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence
i. CA only subjects you to discipline for intentional, reckless or repeatedly failing.
ii. no discipline for a single act of negligence - malpractice = civil action and for particular case
i. malpractice π must show breach of duty of due care NOT THE DUTY OF COMPTENCE - Discipline= by the bar to protect public at large
- whether a lawyer complied by having the requisite legal knowledge and skill depends on:
i. complexity and specialized nature of the matter
ii. the lawyer’s general experience, and training and experience in the field in question
iii. the amount of preparation and study the lawyer will give to the matter
iv. whether it is possible for the lawyer to refer the matter to, or consult with, another competent lawyer - a lawyer may gain competence in a matter by consulting with other lawyers, if lawyer:
i. reasonably believes the outside lawyers will contribute to the competent and ethical representation of the client
ii. obtains the client’s informed consent - a lawyer lacking competence may assist a client in an emergency to the extent reasonably necessary
DUTY OF DILIGENCE
- lawyers must act with reasonable diligence and promptness in representing the client
- lawyers must keep clients informed about the status of the matter and promptly comply with requests for information
- -must convey settlement offers to all clients
II. DUTY OF CONFIDENTIALITY
- attorney-client privilege: evidentiary rule about what communications can be compelled
- confidentiality: ethics doctrine about what information lawyers must not voluntarily disclose
ATTORNEY-CLIENT PRIVILEGE generally
- attorney-client privilege is an evidentiary rule
- rule: prohibits a court or gov’t tribunal from compelling disclosure of confidential communications between an attorney (or attorney’s agent) and a client (or client’s agent)
- Clients.
i. non-clients: preliminary communications leading up to an attorney-client relationship are privileged, even if no such relationship ultimately develops
ii. corporate clients, privileged communications include:
a. those between the lawyer and a high-ranking corporate official
b. those between the lawyer and any corporate employee if:
i) employee was directed to communicate by the employee’s supervisor
ii) employee knew that the purpose was to obtain legal advice for the corporation,
iii) the communication concerns a subject within the scope of the employee’s duties
Atty-client privilege Scope
i. covers communications between clients and attorneys, or their agents
ii. only covers communications not intended for dissemination to outsiders
i. not destroyed by the presence of a third party if present to aid the attorney-client
ii. not destroyed by eavesdroppers
iii. only covers communications pertaining to legal services, not other subjects (i.e. political or business consequences)
a. CA: covers entire confidential communication, regardless of unprivileged material
b. does not cover mechanical details of the attorney-client relationship
iv. cannot be used to immunize a preexisting document or thing
Atty-client privilege Duration
i. indefinite duration, outlives the attorney-client relationship and death of the client
ii. CA: terminates when the client’s estate is settled and personal representative is discharged
iii. clients can waive the privilege expressly or unintentionally by failing to claim it or revealing a significant part of the communication
Atty-client privilege exceptions
- exceptions: the attorney-client privilege does not apply if:
i. client seeks attorney’s services to engage in or assist a future crime or fraud
ii. communication is relevant a breach of duty arising out of the attorney-client relationship
iii. civil litigation between formerly joint clients of the attorney
iv. used as evidence of client’s competency or intent for transfers by will or by inter vivos transfer
cf: attorney MAY breach confidentialiy:
to comply with law, to collect a fee, dispute re atty conduct, to prevent death or bodily harm, financial crime/fraud (not in CA, preempted by S-OX), to protect lawyer, to obtain ethics advice, to resolve conflicts.
no permissive disclosure of clients’ crime (only noisy withdrawal).BUT this is not privileged.
v. CA: attorney believes disclosure is necessary to prevent a criminal act likely to cause death or serious bodily injury
Work-product immunity
i. work-product: material prepared for or in anticipation of litigation
ii. immune from discovery and other compelled disclosure, unless the opposition shows a substantial need for the material and are unable to get it without undue hardship
iii. work product includes lawyer’s mental impressions and opinions, but are immune from discovery regardless of opposition’s need unless immunity is waived
Duty of confidentiality generally
- confidentiality is an ethical duty
- rule: confidentiality prevents the attorney from voluntarily disclosing or misusing confidential information, and requires the attorney to prevent unauthorized access to it
i. attorney cannot disclose
ii. attorney must reasonably prevent inadvertent or unauthorized disclosure by the lawyer and those under the lawyer’s supervision
iii. attorney must reasonably prevent unauthorized access by third parties
Duty of confidentiality scope
i. applies in every context where the attorney-client privilege does not apply
ii. covers all information relating to the representation, whatever the source
a. includes information acquired before or after the attorney-client relationship
iii. does not require client to indicate the information is confidential or require the attorney to speculate whether it will be embarrassing or detrimental
iv. not destroyed by the presence of a third party
v. information is confidential even if known to others, unless it is general knowledge (not general knowledge obtainable only with substantial difficulty or expense)
Duty of confidentiality– ABA permissive disclosure
An attorney may breach confidentiality:
Summary: to comply with law, to collect a fee, dispute re atty conduct, to prevent death or bodily harm, financial crime/fraud (not in CA, preempted by S-OX), to protect lawyer, to obtain ethics advice, to resolve conflicts. no crime-fraud (only noisy withdrawal)
Cf where privilege does not apply: crime-fraud, breach of duty of lawyer, civil lit bw former clients, evidence of client’s competency/ intent to transfer by will/ trust
i. disclosure required by law or court order, or by ethics rules
ii. disclosure to collect a fee
iii. disputes concerning attorney conduct
iv. prevent reasonably certain death or substantial bodily harm to a 3P
a. does not need to be caused by the client or a criminal act
b. does not need to be imminent, only reasonably certain
v. disclosure to mitigate or prevent the client from using the lawyer’s services to commit a crime or fraud reasonably certain to result in substantial financial harm to a 3P
a. must be using or have used the lawyer’s services to commit the crime or fraud
b. can disclose to rectify or mitigate the financial harm even if the wrongful act is already completed
c. CA: prohibits disclosure in cases of financial harm.
i) But may be preempted by Sarbanes-oxley obligations to report out instances of securities fraud.
vi. disclosure to protect the lawyer (ex. dispute about attorney conduct)
a. a mere allegation of complicity with client’s misconduct allows the lawyer to disclose necessary confidential information to persuade the accuser of innocence, even before being charged with a crime, civil, or ethical violation
vii. disclosure to obtain legal ethics advice
viii. disclosure of limited information to detect or resolve conflicts of interest
a. only for purposes of detecting or resolving conflicts of interest when a lawyer changes firm, when two firms merge, or when a firm is purchased
b. only limited client information can be disclosed (names, brief summary of issues)
c. the disclosures must:
i) be limited to minimum necessary to detect conflicts of interest
ii) be used only to detect and resolve any conflicts of interest
iii) occur after substantive discussions about the new relationship
iv) not compromise attorney-client privilege or otherwise prejudice the clients
ix. disclosure with client’s informed consent or implied authority (necessary to carry out representation)
x. note: no crime-fraud exception (only noisy withdrawal if client seeks lawyer’s service for crime or fraud)
CA confidentiality
i. CA has no ethics rule on confidentiality, only an oath to maintain client confidentiality
CA Permissive Disclosure
i. compelled by court order or law
ii. to collect an attorney’s fee
iii. to defend against a legal claim of malpractice, ineffective assistance of counsel, or other wrongdoing
iv. disclosure to prevent a criminal act likely to cause death or serious bodily harm
Third party evaluations
- lawyers may evaluate a matter for a third party a matter that would affect a client if:
i. giving the evaluation would be compatible with lawyer’s duties, and
ii. lawyer gets client’s informed consent if the evaluation is likely to materially harm the client’s interests - ex. providing a character reference for the client for a job
Duty to protect clients’ property: trust account
- lawyer must not steal, borrow, or use client’s money or property in lawyer’s control
- Never commingle client funds.
- all money received by the lawyer on behalf of a client must be kept in a client trust account
i. lawyer must not put own or firm funds into client trust account, except to pay bank fees - trust accounts include:
i. money advanced by the client to cover costs and expenses not yet incurred
ii. legal fees advanced by the client (send itemized bills before withdrawals)
iii. funds in which both the client and lawyer have an interest
a. lawyer can withdraw their portion if accounting provided and client interest severed
b. any disputed portion is kept in the client trust account - Use an interest bearing account to hold client funds.
i. Interest (after bank charges are covered) belongs to the client - If funds too small or held for insufficient time to justify bank charges
i. Can deposit together in pooled client trust account.
ii. Interest (IOLTA) goes to state bar to fund services for the poor - Can pay 3rd party with client consent
i. But if there’s a fee dispute with client or over client funds or client property, you must hold the funds until resolution of the dispute. - Duty to keep individual client ledgers, individual accounting. Notify client of money received and pay promptly money due to him.
i. CA requires you keep these records for 5 years after final distribution.
