Flashcards in Professional Responsibility Deck (66):
What is the duty of loyalty?
To place client’s interest above the lawyer’s
When is there a conflict of interest between current clients?
Where representation of one client is directly adverse to representation of another
Where is there a conflict of interest between a current client and another client?
Where there is a significant risk that the representation would be materially limited by the lawyer’s responsibilities to another/former client, third person or by a personal interest of the lawyer’s
Under aba, when may a lawyer represent a client where there is a concurrent conflict?
1. Lawyer reasonably believes can be competent and diligent to each
2. Representation not prohibited by law
3. Clients not asserting claim against each other
4. Clients give informed, written consent
In Cali, when may a lawyer represent a client where there is an actual or potential concurrent conflict?
Where client gives informed, written consent
In Cali, when may a lawyer represent a client where there is a conflict with only written disclosure?
Where the layer has a personal relationship with a party or witness in the same matter that would substantially affect the lawyer’s representation
How is the Cali rule different than the aba rule on conflict waivers?
Cali doesn’t require written consent by client or reasonable belief that there would not be an adverse affect on client
When may a lawyer make an aggregate settlement in criminal or civil cases?
Where client gives informed written consent
May lawyers in Cali represent both the insurer and the insured?
Yes where the insurer has the contractual right to select counsel for the insured
A lawyer may not enter into a business transaction with a client or acquire an interest adverse to the client unless...
1. Terms are fair
2. Terms are disclosed
3. Client advised to seek counsel
4. Informed written consent
Consent, client, fair, disclosure
When may a former govt employee represent a client in a matter in which the lawyer participated personally and substantially?
Where govt gives informed, written consent
Under aba rule, when may the lawyer solicit a gift from a client?
Where the lawyer is related to the client
When may a lawyer in Cali accept a gift from client?
2. No undue influence
When may a lawyer acquire a proprietary interest in the subject matter of a litigation?
1. Lien to seek fees
2. Reasonable contingency fee
When may a lawyer provide financial assistance to a client under aba rules?
1. Contingency case
2. Indigent client
In Cali, when may lawyer loan client money?
1. When client promises to repay in writing
2. Advance of expenses in contingency fee cases.
When may a lawyer accept compensation from third parties?
1. Informed consent
2. No interference in representation
3. Confidentiality remains
What is an imputed disqualification?
When one lawyer in a firm is unable to take on representation because of a conflict with a former client, the whole firm is disqualified
When does imputed disqualification apply?
1. The matters are substantially similar
2. Remaining attorney has confidential information
When may a firm who employs a former government lawyer represent a client against the government?
1. Former government lawyer has no role in representation
2. No fee sharing with former government lawyer
3. Government notified of possible conflict
When may a lawyer represent an opposing client’s interests under the aba rule?
It is not prohibited, but rarely reasonable.
In Cali, when may a lawyer take a case adverse to a current client?
Under aba rules, when may an attorney get rights to publish the client’s story?
After the representation has concluded
In Cali, when may a lawyer get publication rights to a client’s story?
Where Judge is satisfied that client understands and consents
Under the aba rules, when may a lawyer loan a client $?
1. Indigent clients
2. Advance of expenses in contingency cases
A lawyer may serve a legal services organization notwithstanding the fact that the organization serves persons with an interest adverse to the lawyer’s client unless...
Organization’s decision or action
1. Incompatible with loyalty to client
2. Decision could materially be adverse to lawyer’s client
In Cali, can a former prosecutor work on the defense for the same case?
Under aba, when an organization’s lawyer discovers misconduct that might damage the organization, what does she do?
Must report up the organization
May report our
In Cali, what should an organization’s lawyer do if he discovers misconduct that might damage the organization?
May report up
May not report out
Under aba, when may a lawyer limit malpractice liability?
When client is represented by independent counsel when agreement was made.
When may a lawyer in Cali limit malpractice?
When may a lawyer settle a malpractice suit?
After giving client written advice to seek outside counsel.
When may a lawyer oppose a party with whom the lawyer has a close personal relationship?
Informed written consent
Under aba rules, when may trial counsel be a witness?
1. Testimony uncontested
2. Testimony regarding nature and value of legal services
3. DQ would impose hardship on client
In Cali when may a lawyer testify in a case?
1. Client consents in writing
2. Testimony uncontested
3. Testimony relates to nature/value of legal services
Note: Cali doesn’t recognize hardship to client resulting from dq as a reason for lawyer to be able to testify in client’s case.
When may a lawyer bang his client under aba rules?
Preexisting sexual relationship.
When may a lawyer bang client in Cali?
Where it won’t preclude lawyer from rendering competent legal services.
Not require sex as condition of representation
When may a lawyer reveal confidential info pursuant to consent?
1. Client consents (Cali requires writing)
2. Implied consent - necessary to provide competent legal services
When may a lawyer reveal confidences to prevent death or sbh?
Under aba, lawyer may reveal where he believes it reasonably necessary to prevent death or sbh.
In Cali, lawyer must dissuade first, then inform client of decision to reveal confidences.
Under aba, when may lawyer reveal confidences to prevent significant financial injury?
1. Lawyer’s services being used to perpetuate fraud
2. Reporting would prevent/mitigate financial crime
In Cali, when may a lawyer reveal confidences to prevent financial harm?
What does the duty to communicate with a client entail?
1. Settlement offers
2. Reasonably inform about means of representation
3. Reasonably inform about status of case
4. Reasonable requests for information
5. Decisions requiring informed consent
6. Limitations on lawyers conduct
Settlement means informing requests and consenting conduct.
A lawyer who lacks knowledge and skill may take on a case if...
1. Can get educated without too much delay or expense
2. Associate with competent counsel
Under aba rules, fees must be reasonable in consideration of what factors?
1. Time and labor
2. Preclusion of other employment
3. Fee customarily charged in locality
5. Time limitations
6. Nature and length of relationship
7. Lawyer’s experience, reputation, ability
8. Fixed v. Contingent
What is cali’s writing requirement exceptions for fees?
1. Less than $1k
2. Routine work for reg client
3. Corporate client
Must a lawyer submit to arbitration for a fee dispute?
Under aba, encouraged
In cali, yes if client requests
Under aba rules, what must fee agreement contain?
2. Signed by client
3. % to Lawyer
4. Expenses to be deducted
5. Whether expenses deducted before or after contingent fee calculation
6. Expenses client will be liable for regardless of outcome
In Cali, what must written fee agreements contain?
2. Signed by client and lawyer
3. Lawyer’s % is negotiable
4. % to Lawyer
5. Expenses to be deducted
6. Expenses to be deducted before or after contingency calculation
7. How non-covered expenses will be paid
Are contingency fees allows in divorce cases?
Aba - no
Cali, yes if fee structure doesn’t encourage divorce
Can contingency fees be used in criminal cases?
Aba - no
Cali - silent
What does in quantum meruit mean?
Where representation terminated before recovery, lawyer can recover fee in proportion to work completed prior to termination
May fees be split with attorneys outside a firm?
1. Total fee reasonable
2. Written disclosure and consent
3. In quantum meruit (Cali has no in quantum meruit requirement).
When may fees be split with non attorneys?
1. Death benefits
2. Employee pension/compensation
When a lawyer leaves a firm, the firm may represent a client with adverse interests to those of a client represented by the former lawyer unless...
1. Matters are substantially the same
2. Any remaining lawyer has confidential information
When does attorney client privilege end?
Never - aba rules
After the client’s estate has been distributed - Cali
When may a lawyer give something of value for recommending the lawyer’s services?
1. Qualifies referral service - aba
2. Gift of gratuity for recommendation where gift not consideration of promise that referrals would continue in future
When are reciprocal referral agreements between lawyers allowed?
1. Client informed
2. Non exclusive
How must a lawyer safekeep clients’ property?
1. Keep it separate from lawyers own property
2. Keep records for 5 years
When must a lawyer withdraw?
1. Representation will result in violation of rules or law
2. Lawyer mentally or physically impaired
3. Lawyer discharged (aba only)
4. Lawyer knows that client bringing action without pc or to harass or injure someone
When may a lawyer withdraw?
1. No adverse effect on client - aba only
2. Client using lawyer’s services for crime/fraud
3. Lawyer considers clients actions to be repugnant
4. Client doesn’t meet obligations
5. Representation poses unreasonable financial burden on lawyer - aba only
6. Client insists on proceeding on bad faith -Cali only
7. Client being unreasonable difficult - Cali only
8. Lawyer can’t work with cocounsel - Cali only
Repugnant cocounsel and client, not meeting financial obligations in bad faith and committing fraud. No adverse effect.
Upon withdrawal, what is lawyer’s duty to client?
1. Reasonable notice
2. Surrender papers and property
3. Refund payments not yet earned
What are the requirements for legal advertising?
2. Name and address of lawyer
3. Labeled as advertisement
In Cali, maintain copy of ad for two years. Also in Cali, need not use the word “advertisement” but must use 12 point font on first page
What violates the rules of advertising in Cali?
2. Testimonial without disclaimer
3. Delivery to potential client in fragile state
4. Transmissions at accident scene or hospital
5. Dramatization without disclaimer
6. “No fee without recovery” unless also mentions whether client responsible for costs
Dramatic testimonial predicts fragile hospital fees.
Lawyer can’t communicate with parties represented by counsel unless...
1. Lawyer consented
2. Communication authorized by law/court order
What is a lawyer’s obligation in reporting ethical violations of another lawyer/Judge?
Where other lawyer violated rules of professional conduct
Must report - aba
May report - Cali