Flashcards in Professional Responsibility Deck (33):
Duty of Loyalty (PR)
a lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of the client above all other interests and to avoid any conflicts of interest.
Concurrent Conflict of Interest
Exists if the representation of one client is directly adverse to another client or if there is a significant risk that the representation of one or more client will be limited by the lawyer's responsibilities to another client, former client or third party or personal interests of the lawyer.
ABA Concurrent Conflict of Interests Exceptions
1. lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation
2. representation is not prohibited by law
3. each client gives informed written consent.
CA Concurrent Conflict of Interest Exceptions
1. informed written consent
2. Written Disclosure if personal conflict btwn client and lawyer
Business Transactions with Client
1. Terms are fair
2. Terms are fully disclosed in writing
3. the client is advised in writing to seek independent counsel
4. the client gives informed consent
ABA Rule Solicitation gifts
A lawyer shall not solicit any substantial gift from a client or prepare an instrument that gives the lawyer a gift unless the lawyer is related to the client.
CA Rule Solicitation gifts
A lawyer may accept a gift if it is fair and there is no undue influence
ABA Rule on Advances to Clients
A lawyer shall not provide financial assistance to a client in connection with litigation, with the exception of contingency cases or indigent clients
CA Rule on Advances to Clients
A lawyer may lend money to the client after employment if the client promises in writing to repay the loan.
Compensation from Third Parties
1. client gives informed consent
2. there is no interference with the lawyer's independent professional judgment or lawyer client relationship and
3. confidentiality is not breached
occurs when any conflict of interest exists for an attorney, which results in all attorneys in his firm being disqualified from representing the client since all attorneys share the conflict.
Exceptions to Imputed Disqualification
1. The prohibition is based on a personal interest and does not present a significant risk for other attorney's representation
2. the lawyer with the conflicts is screened
3. the client waives the conflict with informed written consent.
Duty to Communicate
the lawyer shall promptly inform the client of any decision that affects the client's informed consent as well as reasonably consult and keep the client informed of the case.
Duty of Confidentiality
A lawyer shall not reveal information relating to the representation of a client
Exceptions to Duty of Confidentiality
2. prevent reasonably certain death or substantial bodily harm
3. prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial injury to the interest or property of another or use the lawyer's services to do so or
4. Mitigate or rectify substantial injury to financial interest or property of another.
Attorney Client Privilege
A client has a right not to have disclosed any confidential information between the attorney and the client relating to the professional relationship
Reasonable Fee Factors
1. Time Limitations
4. Time and Labor
5. Fee Customarily Charged
6. Likelihood that acceptance would preclude other employment
7. Amount involved and results obtained
8. Whether the fee is fixed or contingent
Fee Agreement Requirements
1. How the fee is calculated
2. the general nature of the legal services; and
3. the responsibilities of the lawyer and the client
Contingency fee Agreement Requirements
1. Be in writing
2. Be signed by client (CA Rules by client & attorney)
3. State Method in which fee will be determined (percentages)
4. State the expenses to be deducted from the recovery and if before or after fees,
5. CA requires statement that fee is negotiable
Fee Splitting with Attorneys (ABA)
May be done if:
1. the division is proportionate to the services performed
2. the client agrees
3. the total fee is reasonable
Fee Splitting with Attorneys (CA)
allowable if client consents in writing after full disclosure and the total fee is not unconscionable
Duty of Competence
a lawyer shall represent the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary
Duty of Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client
Safekeeping of property
a lawyer shall hold property of clients or third parties connected with the representation separate from the lawyer's own property and must keep accounting records for 5 years.
Sexual Relations with Clients (ABA Rule)
A lawyer shall not have sexual relations with a client unless it existed before the lawyer-client relationship
Sexual Relations with Clients (CA Rule)
Allowable as long as the lawyer does not:
1. Require or demand sexual relations as a condition of representation;
2. Coerce, intimiate or exert undue influence or
3. cause the lawyer to perform incompetently
a lawyer shall withdraw from representation if
1. the representation will result in a violation of the rules of professional conduct or other law;
2. the lawyer's mental or physical condition materially impairs the lawyer's ability to represent a client or
3. the lawyer is discharged (ABA rule)
Duty to client upon permissive withdrawal
1. provide the client with reasonable notice to allow time to seek other counsel;
2. surrender papers and property and
3. Refund any advanced payments not yet earned
a lawyer may advertise in any media unless the prospective client has made it known to the lawyer of his desire not to be solicited.
1. contain the name and office address of at least one lawyer responsible for the content;
2. be labeled "advertising material" (CA does not require exact wording)
Targeted Direct-Mail Solicitations
Absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer may send truthful, nondeceptive letters to persons known to face a specific legal problem.
Duty of Fairness
A lawyer has a general duty of fairness to third parties, opposing counsels and the court.