[PROF RESP] • 3 • Formation and Scope of Attorney-Client Relationship • Formation
A lawyer-client relationship is formed when: (1) a person seeks legal services from an attorney; AND (2) the attorney either (a) manifests consent to provide services, OR (b) fails to manifest lack of consent to do so AND the attorney knows or should know that the person would reasonably rely on the attorney to provide legal services.
[PROF RESP] • 1 • Formation and Scope of Attorney-Client Relationship • Organization as a Client
A lawyer employed by an organization (i.e. a corporation or limited liability company) represents the organization acting through its duly authorized constituents. The lawyer must act in the best interests of the organization. In such a situation, the lawyer does not normally represent the officers, directors, or managers of the organization.
[PROF RESP] • 4 • Formation and Scope of Attorney-Client Relationship • Proper Scope of Relationship
Generally, a client controls the goals of the representation and makes substantive decisions, including whether to accept settlement offers or plead guilty. However, the lawyer controls the means to accomplish those goals. Lawyers may limit the clients goals if reasonable under the circumstances AND the client consents the same.
[PROF RESP] • 14 • Duty of Competence •
A lawyer owes his client a duty of competence, which requires that the lawyer possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client. Under this duty, a lawyer may NOT take a case in an unfamiliar area of law UNLESS the lawyer will be able to seek help from an experienced lawyer. Incompetence exposes lawyers to (1) discipline by the bar; (2) disqualification in the litigated matter; OR (3) civil malpractice law suits. In California (CA), a lawyer is only subject to discipline if the lawyer intentionally, recklessly, or repeatedly fails to perform legal services with competence.
[PROF RESP] • 6 • Duty of Competence • Duty to Communicate with Client
A lawyers duty to communicate with the client includes (1) keeping the client reasonably informed on the status of the matter; (2) returning client phone calls and inquiries promptly; AND (3) consulting with the client about strategy decisions and any matters requiring the clients consent . All settlement offers must be conveyed to the client.
[PROF RESP] • 6 • Duty of Competence • Duty to Pursue a Matter Diligently
A lawyer owes his client a duty to diligently and promptly pursue the case to the end.
[PROF RESP] • 3 • Withdrawal • Madatory
A lawyer MUST withdraw from the representation if (1) the lawyer is fired ; (2) the lawyers physical or mental condition materially impairs the representation ; OR (3) continuing the representation would violate an ethics rule or other law .
In CA, a lawyer must also withdraw if the lawyer knows or should know that the client is bringing an action without probable cause for the purpose of harassing or injuring a person . Proper withdrawal requires the lawyer to (1) provide timely notice to the client AND (2) promptly return any unspent fees, advanced expenses, and all of the clients papers and property. In CA, a lawyer may NOT hold client materials until his fees are paid.
[PROF RESP] • 2 • Withdrawal • Permissive
A lawyer MAY withdraw upon a showing of good cause to the court. Examples of good cause include (1) when the client persists on a criminal, fraudulent, or repugnant course of action ; OR (2) the client fails to substantially fulfill an obligation after reasonable warning. Under the American Bar Association Model Rules of Professional Conduct (ABA), good cause also exists if (1) withdrawal will not materially damage the clients interests ; (2) the representation will unreasonably financially burden the lawyer; OR (3) the client has used the lawyers services to commit a crime or fraud .
[PROF RESP] • 15 • Duty of Confidentiality •
A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client . The duty of confidentiality is broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and client/potential client, regardless of whether the client requested the information to be kept confidential or whether the use of the information will damage the client.
Under the ABA , a lawyer may disclose confidential information if (1) the client consents ; (2) the lawyer is ordered by law to do so; (3) the lawyer does so to defend himself in a malpractice action or suit to recover legal fees; (4) to prevent death or substantial bodily harm ; (5) to prevent the client from committing a crime or fraud (in which the lawyers services were used) that will result in substantial financial loss .
In CA , a lawyer may only disclose confidential information to prevent a crime that will result in death or substantial bodily injury if the lawyer (1) first makes a good faith attempt to counsel the client out of committing the crime and/or changing the clients course of action so that it will not result in death or substantial bodily harm AND (2) informs the client of the lawyers ability and/or decision to disclose the information.
If the client is an organization , and the lawyer becomes aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization, the lawyer may refer the matter to higher authorities within the organization. After reporting up, the ABA permits disclosure to an outside source if necessary to prevent substantial injury to the organization. However, CA only permits disclosure to an outside source if necessary to prevent death or substantial bodily harm .
[PROF RESP] • 18 • Duty of Loyalty • Conflicts of Interest (in general)
A lawyer owes his client a duty of loyalty , which means he must act in the clients best interest and avoid conflicts. A conflict exists if (1) the representation is directly adverse to a current or former client; OR (2) there is a significant risk that the lawyer's representation will be materially limited due to the lawyer's present or former personal relationships or interests.
[PROF RESP] • 17 • Duty of Loyalty • Conflicts between Clients (Former, Current, and Prospective)
A lawyer may NOT represent clients if (a) the representation is prohibited by law ; OR (b) the representation is of parties on opposite sides of the same matter in the same court .
A lawyer MAY represent clients whose interests conflict if (1) the lawyer reasonably believes (objective standard under ABA, subjective standard in CA) that he will be able to provide competent and diligent representation to each client; AND (2) each client gives informed consent in writing .
A lawyer may not participate in aggregate settlement of claims without the informed written consent of each client. In CA, a lawyer must also get informed written consent for potential conflicts . Additionally, if a conflict is purely personal , the lawyer only needs to provide written disclosure of the conflict.
[PROF RESP] • 2 • Duty of Loyalty • Conflict of Interest - Former Lawyer for Government
Former government lawyers who worked personally and substantially on a matter may NOT work on that same case at a private firm UNLESS the government agency consents in writing . The conflict will not be imputed to the rest of the firm if the lawyer is properly screened (see Imputed Conflicts). In CA, a prosecutor may NOT work for a defendant from any of his previous cases.
[PROF RESP] • 2 • Duty of Loyalty • Imputed Conflicts of Interest
Generally, conflicts of interest are imputed to the entire firm and the entire firm is disqualified from the representation. However, a firm will not be disqualified if (a) the conflict is purely personal ; OR (b) the conflict arises out of association with the lawyers previous firm and the lawyer is properly screened .
A proper screen requires that (1) the conflicted lawyer not share fees ; (2) written notice is provided to the former client; AND (3) a certificate of compliance is provided to the former client.
[PROF RESP] • 2 • Duty of Loyalty • Self-Dealing
A lawyer must NOT engage in self-dealing or act in his own interest rather than the clients.
[PROF RESP] • 1 • Duty of Loyalty • Business Ownership by a Lawyer
A lawyer may own and operate a business separate from the practice of law . However, he must be careful not to engage in a business that would pose a conflict of interest with his clients.
[PROF RESP] • 3 • Duty of Loyalty • Pecuniary Interest in a Case
A lawyer may NOT acquire a pecuniary interest in the cause of action or subject matter of litigation where the lawyer is providing representation UNLESS the interest (1) is a lien authorized by law to secure the lawyer's fee or expenses; OR (2) a contingency fee in a civil case. CA permits contingency fees in criminal cases.
[PROF RESP] • 2 • Duty of Loyalty • Loans to Clients
Under the ABA, loans to clients, in excess of litigation expenses, are not permitted . However, in CA, loans are permitted IF the loan agreement is confirmed in a writing signed by both parties .
[PROF RESP] • 1 • Duty of Loyalty • Serving on the Board of a Client's Corporation
If a lawyer seeks to serve as a board member on an organization he represents, he must do so effectively and without jeopardizing his ethical duties to the organization as his client.
[PROF RESP] • 3 • Duty of Loyalty • Lawyer-Client Business Transactions
Business transactions between lawyers and clients are permitted if (1) all terms are fair to the client; (2) all terms are disclosed in writing; (3) the client is advised to consult outside counsel ; AND (4) the client consents in writing . This rule applies when a lawyer accepts an ownership interest in a clients business as payment of all or part of the lawyers fees.
[PROF RESP] • 2 • Duty of Loyalty • Sexual Relations with Clients
Under the ABA, lawyers may NOT engage in sexual relations with a client UNLESS the relationship existed before representation.
In CA, client sexual relations are permissible if (1) the lawyer continues to provide competent legal services ; (2) the relationship is not a condition for representation ; AND (3) the client does not enter into the relationship because of duress or undue influence.
[PROF RESP] • 6 • Duty of Financial integrity • Ethical Amount of Attorney's Fees
Under the ABA, a lawyers fee must be reasonable in light of the skill, experience, time, degree of specialty, and difficulty required for the task. In CA, the fee must not be unconscionably high .
[PROF RESP] • 1 • Duty of Financial integrity • General Fee Agreements
Fee agreements must include (1) how the fee is calculated ; (2) what services are covered ; AND (3) the lawyer and client duties . Agreements are NOT required to be in writing under the ABA. In CA, all agreements must be in writing UNLESS (a) the fee to be charged is less than $1,000 ; (b) the work is routine work for a regular client; (c) the client is a corporation or business organization; OR (d) the circumstances of the engagement make a written agreement impractical or impossible .
[PROF RESP] • 4 • Duty of Financial integrity • Contingency Fee Agreements
A contingency fee agreement is an agreement between the lawyer and client that the lawyers fees will be paid out of any recovery the client receives . A contingency fee agreement MUST: (1) be in a writing signed by the client ; AND (2) include (i) the percentage of recovery the lawyer will take , (ii) the expenses that will be deducted from recovery, and (iii) whether the lawyers percentage is taken out before or after expenses.
In CA, the writing must also include (1) how work or expenses not covered by the contingency fee will be paid ; AND (2) that the lawyers fees are negotiable .
The ABA prohibits the use of contingency fees in all domestic and criminal matters , while CA only prohibits contingency fees in domestic matters IF the agreement encourages divorce .
[PROF RESP] • 1 • Duty of Financial integrity • Advancing Litigation Expenses
A lawyer may advance an indigent clients litigation expenses, provided the lawyer may later recover them as part of his contingency fee .
[PROF RESP] • 3 • Duty of Financial integrity • Payment of Legal Fees by a Third Party
A third party may pay a clients legal fees IF (1) the client consents to the payment; (2) there is no interference with the lawyers independence of professional judgment or the attorney-client relationship; AND (3) information related to the representation remains confidential .
[PROF RESP] • 4 • Duty of Financial integrity • Fee-Splitting with Non-Lawyers
A lawyer may NOT split fees with non-lawyers. Exceptions are permitted for (1) death benefits paid to the deceased lawyers firm or heirs for his work; (2) salaries paid to non-lawyer employees ; OR (3) court awarded legal fees that are shared with a non-profit that employed or recommended the lawyer.
[PROF RESP] • 2 • Duty of Financial integrity • Fee-Splitting with Other Lawyers
A lawyer MAY share fees with lawyers inside of the firm. When a lawyer shares fees with lawyers outside of the firm , (1) the total fee must be ethical (ABA requires reasonable; CA requires not unconscionable); (2) written disclosure must be provided to the client; AND (3) the client must consent in writing . The ABA also requires that the fee splitting be proportional to the work done by each lawyer, unless each is jointly responsible.
[PROF RESP] • 2 • Duty of Financial integrity • Referral Fees
Referral fees are generally prohibited , though lawyers may pay a reasonable fee to a lawyer referral service. A lawyer may refer a client to another lawyer or professional IF (1) the referral agreement is not exclusive ; AND (2) the client is informed of its existence and nature .
In CA, a lawyer may give a gift to a person who recommended his services as long as it is NOT given under the understanding that gifts will be given and/or referrals will be made in the future.
[PROF RESP] • 8 • Duty of Candor to the Court •
A lawyer may NOT engage in conduct involving dishonesty or fraud . A lawyer shall not knowingly : (a) make a false statement of fact or law to a tribunal; (b) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; OR (c) offer or use evidence that the lawyer knows to be false.
[PROF RESP] • 1 • Duty of Candor to the Court • Ex Parte Communications with the Court
A lawyer may NOT seek to influence the Court (a judge) or communicate the merits of a case without all parties present (ex parte) during a proceeding, unless the attorney is authorized by law to do so. During an authorized ex parte proceeding, the ABA specifically requires a lawyer to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.