Professional Responsibility Flashcards
(43 cards)
Mandatory Withdrawal
- Resulting Violation of ethical rules or laws.
- L’s mental/physical Health (MR: materially impairs; CA: unreasonably difficult
- CA: Bad faith assertions by the client (no P.C. or to harras)
Permissive Withdrawal
1) Crime/Fraud
2) Past Crime/Fraud
4) C makes representation unreasonably difficult
5) Other good cause
6) For any reason, so long as it does not materially harm C
MR:
1) Fundamental disagreement with C’s course of action
2) Representation causes unreasonable financial burden
CA:
1) C’s claim is not supported under existing law and no good faith argument’s for modification/reversal
2) C’s consent
3) Inability to work with co-counsel
4) L’s mental/physical condition renders it difficult for L to carry out the representation effectively
5) Continued representation is likely to violate CA rules
Basis of Rate of Fee’s
must be reasonable when considering difficult, preclusion of other employment, L’s expertise, customary fee for similar services
CA Fee Requirement
If total expenses are over $1,000, then the fee agreement must
1) be in writing
2) A copy given to the client
3) the writing must include the basis of compensation, nature of legal services, and contractual responsibilities of L and C
Exceptions to the CA writing requirement
1) Corporate C
2) C waives written contract after full disclosure
3) fee implied by previous services rendered;
4) emergency
Fee Splitting
MR: fee in proportion to services rendered, C’s written consent, total fee charged reasoanble
CA: Ls enter into written agreement to split fee; C’s written consent after full disclosure; total fee not higher solely because of splitting
Referral Fees
CANNOT compensate for a referral, but you may
1) Pay for permitted advertisement
2) pay for an approved legal referral service
3) refer pursuant to an agreement that provides referrals so long as it is a) not exclusive; b) client is informed
CA: May give gifts, so long as the gift is would not encourage future referrarls.
Client’s Funds
Gotta keep it separated.
Keep records for five years
Dispute over funds->disperse not disputed and keep rest in trust account
Duty of Confidentiality: Permitted Disclosures
1) Death/Substantial Bodily Harm
MR: allows disclosure to prevent “reasonably certain” death/substantial bodily harm
CA: allows disclosure reasonably believed necessary to prevent a criminal act that L reasonably believes will result in death or substantial bodily harm. Before disclosure, must try to persuade C to not commit act
2) Substantial Financial Harm to another
MR only, not applicable in CA
3) Securing legal advice
4) L-C controversy
5) Compliance with court order
Duty of Loyalty: Concurrent Conflict
A concurrent conflict exists when
1) representation is directly adverse to another client;
2) significant risk lawyer’s representation will be materially limited due to his personal interests OR responsibilities to another present/former client or third party
How to cure a conflict
1) Lawyer reasonably believes that he will be able to provide competent and diligent representation
2) representation not prohibited by law
3) not representing parties on opposite sides of the same litigation
4) informed consent (CA: informed written consent; MR: Informed consent, confirmed in writing)
CA written disclosure Requirement
An attorney must provide written dislosure, even if there is no significant risk that the representation will be limited, when the lawyer
1) has a legal, business, financial, professional, or personal relationship to a party or witness in the same matter
2) knows or reasonably should know that another party’s lawyer is a family member, lives with, or is a client of the lawyer or has a personal relationship with the lawyer
Conflict of Interest: Former Client
L cannot represent a new C in the same or substantially related matter as a former C if new C’s interests are materially adverse to the former C’s interests
May be cured by requisite steps
Business Transactions with Client
Not permitted unless
1) terms fully disclosed in writing
2) Fair and reasonable to C
3) C is advised in writing need for counsel and given opportunity to seek independent counsel
Limiting Malpractice
MR: permitted if C represented by independent counsel
CA: prohibited
Settling Malpractice
OK only if C given reasonable opportunity to seek independent counsel
Former Government Employees
Cannot represent client in matter in which L participated personally and substantially participated in without informed consent (cA: informed consent, confirmed in writing; MR: informed written consent) of government agency.
Lawyer Switches Firms with Conflict Rules
L cannot accept employment materially adverse to C from a former law firm when
1) L has obtained confiedntial material to the new matter
2) without informed consent
Screening
Conflict will not be imputed if disqualified L is
1) screened
2) given no share of fee
3) Client is given notice and certification of compliance with screening
CA: L must not have substantially participated in the same or substantially related matter
Personal conflicts do not count
3rd Party payments to L
Not permitted unless
1) C gives informed consent
2) no interference with L’s judgement
3) confidentiality is preserved
Dual representation of organization and employees
Permitted as long as
1) No other conflict exists
2) L must explain C’s identity to constituents when organizations interests are or may become adverse to those constituents
Reporting Misconduct inside Orgnization
Up and out
MR: if higher authority fails to act, AND it is a clear violation of the law and the organization will suffer substantial harm, L may report out
CA: “” L may not report out, can only resign
Duty of Competence
A lawyer owes his client the duty of competence which requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client
Duty of Competence: Unfamiliar area of law
L cannot take case in unfamiliar area of law unless he gains competence by
1) Associating with a competent lawyer
2) acquire sufficient learning and skill before performance is required
