Flashcards in Professional Responsibility Deck (68):
what is the acronym for duties to client?
CLFC (Cousins loves fucking curry)
what is the acronym for duties to other parties?
CFD (Cousins fights Durants)
what are the duties owed to clients
what are the duties owed to third parties?
Candor to public/court
Dignity/Decorum to court
what is the duty of confidentiality?
dont reveal anything or use the information
1. related to the representation of the client
2. without her consent.
whats the difference between duty of confidentiality and attorney client privilege?
duty of confidentiality is alot broader.
what are the exceptions to the duty of confidentiality?
2. Compelled by court
3. Defending yourself
4. reasonably certain death or substantial bodily harm
5. financial harm
is there a CA exception for financial harm?
what are the elements for reasonably certain death or substantial bodily harm?
1. you gotta make a good faith effort to convince him not to.
2. CA - Inform client of decision.
what is the duty of loyalty?
you have a duty of loyalty your client. If an interests of your client, yourself, and third party LIMITS or is ADVERSE to representation you have a conflict.
Does CA require consent for a potential conflict?
is ignorance of a conflict an excuse to the duty of loyalty?
what is an imputed disqualification
any lawyers who work together share each other's conflicts.
whats an exception to imputed disqualification?
if you can screen the employee.
1. dont let him work on it
2. receives no fee
what is the conflicts test?
1. do you reasonably believe that you can effectively represent your client despite the potential or actual conflict?
2. inform all parties involved
3. received consent in writing.
what is a conflict that is never ok?
when u represent opposite sides in the same proceeding in a trial.
if you were a government lawyer?
substantially and personally worked on a matter, you cannot work for private on same matter unless you have governments consent.
can you limit your client's right to professional misconduct, or malpractice?
No unless you have independent counsel.
when can a client settle against you?
must have independent counsel.
can you obtain publication rights?
1. when representation has ended
2. CA - If judge is satisfied client clearly understands and consents
when can lawyer pay of financial assistance?
contingent case, advance litigation expenses.
when can you enter into business with a client or obtain interest adverse to them?
1. Fair terms
2. Disclosed in understandable writing
3. Outside lawyer
4. Consent in writing
when can you be lawyer and a witness?
1. uncontested testimony
2. about services rendered
3. distinctive value if withdrawal
CA- You may testify in any bench trial, and if the client consents - in a jury trial.
your sole duty is to who?
your client and not to any third party.
in a non-contingent fee case what is required?
1. how fee is calculated
2. lawyer and clients duties
3. what services are covered
in CA has to be in writing
In contingent fee case what is required?
signed and written agreement
1. % to be taken
2. what expenses will be deducted.
3. whether your percent is taken before or after expenses.
4. how work not covered by contingent fee will be paid.
5. The lawyers fees are negotiable
when are contingent fees prohibited?
1. domestic relations
2. criminal cases
what if you terminate before judgment and there is a contingency fee agreement.
quantum in merit (reasonable fees)
fees must be?
aba - reasonable
ca - not unconscionably high
is double billing allowed?
aba: unreasonable and dishonest
ca: not unconsionable if dsiclosed before and obtained consent
is ok to split fees with lawyers in your law firm?
when may you split fees from a lawyer outside your firm?
division has to be proportional.
is fee splitting allowed with non-lawyers?
what are the exceptions of fee splitting with non-lawyers?
1. dead lawyer, give to his heirs
2. salaries paid to non-lawyer employees
3. sharing of court-awarded legal fees with a non-profit organization that employed or recommended you.
can you partner with non-lawyers in providing legal services?
no nonlawyers cannot be partners, shareholders, officers, or control or direct your professional judgment.
when are referrals with other professionals ok?
if they are not exclusive and you explain the arrangement to the client.
what duties are involved with trust accounts?
1. must safeguard clients property
2. never borrow or comingle funds with your personal money.
what is the duty of competence?
using legal knowledge, skills, thoroughness, preparation, reasonably necessary for representation.
what is the duty of diligence?
must promptly and dilligently pursue case yo completion.
what is the duty of communication?
have to inform client, and answer client communications, convey settlement offers
when must you reject representation?
when doing so would result in violation of law or ethical rule (you are not in physical or mental shape to take the case)
what is the scope of representation?
client controls substantive rights
lawyer controls legal strategy.
when must you withdraw your representation?
if fired or
would violate a law or ethical rule.
ca* explicitly requires withdrawal if a client acts without probable cause and to harass or maliciously injure another.
you may withdraw if there is good cause
persisting in repugnant course of action, failing to fulfill an obligation you, unreasonably financially burdens you.
how do you withdraw?
1. timely give notice to the client
2. return unspent fees or expenses
all of the clients property and material papers. everything needed to pursue the case.
can you have sex with your client?
only if you had a preexisting sexual relationship.
ca- allows new relations with caustions.
what is the duty of candor and dignity owed to?
public and profession
what are the requirements for advertising?
must not be false or misleading.
dont raise unjustified expectations or make unverifiable comparisons.
ca- presumes improper if ad contains guarantees, warranties, or predictions of a result. testiomonials and disclaimers may not be used that they are not a gwp.
when can you claim you are a certified speciailist
if you are certified, ca has 4Es. education experience, examination, and evaluations.
every ad must be labeled as an advertisement and what?
an impersonation or dramatization if applicable.
what must an ad include?
1. it must identify at least one lawyer responsible for its contents.
must you keep records of ads?
yes for 2 years.
what is solicitation?
individualized contact with a layperson
what is the rule of solicitation?
you cannot seek professional employment for pecuniary gain by initiating live or telephone contanct with a specific person. aba (live is broad) ca (narrowly)
what is the duty of candor and fairness to your adversary?
you cannot engage in conduct involving dishonesty, fraud, or misrepresentation.
what is the duty to present facts and evidence truthfully?
you must not make a false statement of material fact or offer evidence you know is false to a tribunal, or fail to correct that you previously presented.
what about perjury?
you must not KNOWINGLY facilitate perjury.
in a civil case what if you know he intends to perjure himself?
you must refuse to call a witness.
in a criminal case what do you do if wintess intends to commit perjury?
1. counsel witness to tell the truth or not take the stand
2. you may withdraw
3. tell the judge. ca says allow d to testify in narrative fashion.
you must not suppress, obstruct, or temper with evidence
what must you draw a line for?
duty of confidentiality and physical evidence. must give gun but dont tell what client told u.
what must a prosecutor disclose?
favorable evidence to the defense. must also have probable cause.
knowingly making a false statement of law or failing to cite adverse authority is a violation of what duty?
duty to state the law truthfully
what happens if you happen to receive confidential information of your opponent?
you must stop reading it immediately and notify your opponent.
communication with represented entities?
you must communicate with a person you know is represented by counsel without consent of his counsel.
when dealing with press?
you must not make statement that you know will substantiall likelihood of materailly prejudicing the case.
when you can practice out of state?
1. when you are working with a local lawyer
2. there services are related to adr
3. matter reasonably related to hour home state performance.
ca is stricter. must require the lawyer to register and dues, get continuing legal education, be subject to CA ethics.