Flashcards in PROFESSIONAL RESPONSIBILITY Deck (53):
What duties do you owe your client?
3. Financial Responsibility
& other reasonable things.
clients love fierce counsel
What duties do you owe to entities other than your client?
1. Candor/ Truthfulness
3. Dignity/ Decorum
& other reasonable things
...courts feel differently (clients love fierce counsel)
What is the general rule regarding the duty of confidentiality?
Don't reveal anything related to the representation of a client without her consent. Maximize trust & candor.
The duty of confidentiality applies _______________ whether the client
requested it be kept "confidential" or whether its revelation might harm or embarrass
Which of the following is a valid disclaimer?
1. I agree I am not forming an attorney-client relationship or a confidential relationship by submitting this.
2. I understand and agree that LawFirm will have no duty to keep confidential the information I am now transmitting to LawFirm.
The first was not in plain enough terms.
T/F: The duty of confidentiality can attach before a lawyer/client relationship is formed.
Once attached, your duty of confidentiality continues, even after ________ or even after _________.
your representation ends
Atty/Client privilege is an evidence rule that allows the client or privilege holder to prevent you from testifying about confidential communication. Although it overlaps with privilege, confidentiality is ___________.
broader. It applies regardless of the source of information, to anything not generally known, and to disclosures beyond the legal representation, including those that could reasonably lead to discovery of information related to the representation.
What are the major exceptions to the ethical duty of confidentiality?
1. Consent. Also implied consent to reveal what's necessary to render your legal services.
2. Defending yourself against (1) malpractice (2) disciplinary actions, (3) client refuses to pay, etc.
3. If compelled by final court order, law or other ethical duties.
•Duty to uphold the law allows revelations to prevent: (1) death or substantial bodily harm, (2) prevent fraud or crimes causing financial injury ***Significant CA changes here.
How do the ABA rules and the CA rules in regards to the exceptions to duty of confidentiality?
Under ABA, lawyer may reveal what's necessary to prevent the act if you reasonably believe it will prevent reasonably certain death, or substantial bodily harm.
In CA, you must first make a good faith effort to persuade the client not to commit the act, and inform the client of your decision to reveal his confidences.
Under ABA, you may reveal confidences to prevent future financial or fraud crimes if he used or is using your services to commit the crime and the disclosure would prevent or mitigate a substantial financial loss.
Under CA, there is no exception to duty of confidentiality for fraud/ financial crimes.
What is the duty of loyalty?
You have a duty of loyalty to your client. If an interest of another client, yourself, or a third party materially limits or is adverse to loyal representation, you have a conflict of interest.
On the bar exam, when dealing with a potential duty of loyalty issue,
flag and discuss all potential and actual conflicts.
*Watch out for potential conflicts that become actual conflicts after representation begins. IRAC each as distinct issues.
Ordinarily, you are responsible for duty of loyalty even if you are ignorant about a conflict. The exception, however, is for ___________.
short-term legal services under a court agency, a non-profit program, where you are responsible only if you actually knew of a conflict.
What is imputed disqualification?
Means any group of lawyers that work together closely or share responsibilities share each others' conflicts, e.g., private firms or corporate law departments.
CA ________ but does not ______ a lawyer for imputed conflicts.
What is the exception to imputed disqualification?
When one lawyer's conflicts arise from previous gov't service or work for adverse parties at a previous firm, representation by her colleagues may be allowed with safeguards such as screening.
*CA also relaxes imputation of conflicts
that are purely personal to the lawyer and for short-term legal services under non-profit
or court programs.
Tip: If there is more than one lawyer in the facts, check for _________.
What are potential remedies for a conflict?
Depends on the posture of the case: Refuse to take the case, advise multiple clients to get separate counsel, and /or withdraw.
An ______ may screen off the lawyer with a conflict from colleagues to cure their imputed disqualifications. Client consent may also be required.
Some conflicts will always be violations, and representation is prohibited. Some conflicts may be tolerated depending on a case by case ________ of three elements: (which are)
factual analysis of 3 elements:
1. You reasonably believe you can represent everyone effectively despite the potential or actual conflict. (CA does not require the belief to be objectively reasonable) AND
2. You inform each affect client. AND
3. The client consents in writing. (CA allows certain conflicts that are personal to the lawyer to be merely disclosed in writing to the client).
4. Some imputed conflicts will also require screening to be reasonable.
Some facts might suggest a conflict, but fall outside of the rules or into an exception. You should flag and dispose of these.
Your law firm represents Texaco in labor matters, although you have done no work
for it. Lundwall, a former Texaco employee, asks you to help him sue Texaco for
cutting off his benefits. Can you?
No. This is a case of opposite sides of the same conflict. Imputed disqualification means you represent Texaco. Lundwall and Texaco are in direct conflict it is unreasonable to represent both.
Your law firm represents Texaco in a securities action.
May you now take the labor claim of Lundwall v. Texaco?
A representation adverse to a current client in a current transaction requires all clients' consent.
What is the CA statutory exception to client conflict?
There is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where the insurer's interest is only as an indemnity provider.
Eg. NorCal InsCo retains your firm to represent Driver 1 in tort case. May you now
represent Driver 2 in a different case against Driver 3 and NorCal InsCo,
insurer? Yes. because Norcal is only an indemnity provider in both, it falls into the exception.
NorCal InsCo retains your firm to represent Driver 1 in tort case. May you now
represent Driver 2 in a different case against Driver 3 and NorCal InsCo,
Yes, because norcal is only an indemnity provider, in both, it falls into the exception in CA.
Is there a conflict if you are representing 2 clients with inconsistent positions?
Likely, no. Positions usually don't create conflict, but if either would be disadvantaged, you must obtain consent.
E.g. You need to argue both for and against the health care law in two different appeals. Is that Ok? Probably.
You need to argue both for and against the health care law in two different appeals. Is that Ok?
Probably. Positions don't usually create conflict, but if either would be disadvantaged, you must obtain consent.
Representing multiple clients in the same matter of acting as an intermediary raises significant risks that your service may become materially limited as a result of the others' interest. These potential conflicts generally require ___________.
disclosure and consent.
1. a corporation and any of its directors, officer, ees, or shareholders
2. both spouses in an uncontested divorce or drafting wills
Kevorkian's insurance company hires you to defend him and it in a malpractice
action. This presents a ______________________________, but is OK with reasonable
Now, however, Kevorkian tells you he used medically unorthodox practices on the
plaintiff that are not covered by his malpractice insurance policy.
Now there is a direct
conflict between Kevorkian and his insurance company over coverage.
Best remedy for this conflict?
Withdraw from both and advise them to get separate counsel.
You must at least
withdraw from representing InsCo because you have relevant, confidential
information from Kevorkian that you cannot use in pursuing undivided loyal
representation of InsCo.
In criminal cases, dual representation might also impede the ________.
6th am's guarantee of effective assistance of counsel.
Always look for __________ breaches in multiple client representation.
If confidential information from a former client might be relevant to a new client's
matter, you may be violating your continuing duty of ______________________ and
your duty of ______________ to your former client. The rule is, you cannot take on new client with interests materially adverse to a former client without the ________.
confidentiality; loyalty; former's consent.
The rule is, you cannot take on new client with interests materially adverse to a former client without the ________.
1. What if you once defended Britney against copyright infringement charges, gaining
access to her private recording notes. Can you use that knowledge now to represent
Christina in an infringement action against Britney?
2. If you leave your firm, can it now represent Christina in her
action against Britney?
3. At your new firm, your conflicts will not extend to your new colleagues if you:
1. No: using non-public confidential information against a former client is unreasonable without consent.
2. Not if: (i) the matters are substantially related or the same, and
(ii) any remaining lawyer has confidential material information.
3. Not imputed to new colleagues if:
1. you are timely and effectively screened
2. you receive no direct part of the fee and
3. your former client receives notice and periodic certifications of compliance with these conditions.
The ABA bars a gov't lawyer who worked ____________ on a ________ from working on the same matter later in private practice without the gov't's consent.
substantially and personally; matter
1. You've left the Equal Employment Opportunity Commission where you worked
on regulations prohibiting religious discrimination. At your new firm, can you
litigate the meaning of those regulations?
2. What if you litigated an anti-discrimination suit against Halliburton while at the
EEOC? Now at a private firm, may you represent Halliburton in that case?
1. Yes, regulations are not a matter. Matter= a specific dispute between specific people over specific issues.
2. Nope. That is a matter, can't do it without the EEOC's consent.
* Same rules apply for judges, clerks, arbitrators, and other attorneys.
What are the 3 ABA conditions for an exception to imputed disqualification of colleagues of former gov't lawyers:
1. you are screened off and
2. You do not share any part of the fee in the matter (pre-arranged salary is ok).
3. former gov't ER is informed (but no consent needed).
CA cases also screen public sector colleagues in civil cases. CA law explicitly disqualifies __________ in a case from later working on the defense side of that case.
You must not solicit a substantial gift form a client, or draft a legal instrument for a client who is not your close relative, if it ____.
provides a substantial gift to you or your relative.
What are the rules for limiting liability under ABA/ CA?
1. You cannot limit your clients right to report you for ethical or other professional violations.
2. ABA: You cannot limit your malpractice liability when you enter into a relationship with your client, unless the client is independently represented in making the agreement.
CA: You cannot limit malpractice liability.
3. If a client later does make a malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first.
What are the ABA/ CA rules for publication rights contracts?
ABA: Lawyer can't buy rights to clients' story before the representation has ended.
CA: CA case law discourages before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents.
What are the ABA/CA rules about loans and advances to your client?
ABA: forbids financial assistance, except for litigation expenses for an indigent client, and the advance of litigation expenses in contingent fee cases.
CA: forbids promising to pay a prospective client's debts, but allows loans to a client in all matters for any purpose with a written loan agreement.
The general rule for CA is that it is ________, but _____. Often more broad, but will require writing.
You may enter into business with a client or obtain an interest adverse to hers only if:
1. the terms are fair to the client,
2. disclosed in understandable writing
3. the client has an opportunity to consult an outside lawyer
4. your client provides written consent, or in CA, written disclosure.
"First Discuss Over Coffee" Fair, Disclosed, Outside lawyer, Consent
In representing a start-up company, its law firm agreed to accept payment in shares of stock equal to the value of its services. Assuming the work is valued reasonably and the transaction is documented, may it do so?
Yes, if it is fair and reasonable under the circumstances known to the lawyer when the interest was acquired.
*Be particularly cautious if the investment is by individual firm members, or if the acquisition represents a major asset that might distort the firm's advice to the company, e.g. regarding disclosure of bad news.
T/F: Service on the Board of Directors of a non-profit legal services organization is allowed.
Is there a bar to sitting on the Board of a corporate client?
No, but it is strongly discouraged because it is likely to compromise duties of loyalty and confidentiality.
Attorney Dan is a member of the Board of Directors of World Bucks, Inc. Paul, World's CEO, asks Dan to defend him in an investigation of his alleged embezzlement of company money. May Dan represent him?
No. Dan has a fiduciary duty to the corporation in her personal capacity as a member of the Board. World and Paul are in direct conflict, so Dan cannot be loyal to both.
The ABA rules bar your appearance as counsel and witness in the same trial unless:
ABA: bars your appearance in trial unless
1. your testimony is uncontested or
2. regarding the nature and value of services rendered or
3. if your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might prejudice the client, consent is required, and the conflict is imputed to colleagues.
CA: Is less restrictive: you may testify in any bench trial, and if the client consents, in a jury trial.
What is the rule for relationships with your adversary's lawyer?
You can't oppose a party represented by your relative without client consent. "Close relations" clearly include:
1. immediate family, i.e. your parent, child, sibling, and spouse.
2. CA explicitly recognizes other "intimates": e.g. shackmates, and requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party or witness in the same matter.
T/F: Payment for your services from a third party is permitted.
True, but only with informed consent from client. As a general rule, your sole duty is to your client, not to any 3rd party, even if the 3rd party is paying.
What is the rule for organizational clients?
A lawyer must act in the best interest of the entity even if an officer, employee, or other associated person acts to the contrary.