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35 Cards in this Set
- Front
- Back
Duties Owed to Client
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Confidentiality
Loyalty Financial Responsibility Competence And Other reasonable things |
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Duties owed to Court/Adversary/Public/Profession/3rd Parties
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Candor
Fairness Dignity Other reasonable things |
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Mnemonic for Duties Owed by Attorney
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Clients Love Fierce Counsel; Courts Feel Differently
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Duty of Confidentiality
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Rule: Atty cannot reveal anything "related to the representation" of a client without CONSENT.
"related" is interpreted broadly - not just confidential communications Duty can attach before atty-client relationship is formed and continues indefinitely Source of the info is irrelevant. |
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Exceptions to Duty of Confidentiality
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Consent
Intent to Commit death or substantial bodily harm Intent to commit fraud or financial crime (not in CA) Use by atty to defend himself Compelled |
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Exception to Confidentiality: CONSENT
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(1) must be after consultation; and (2) may be implied when necessary to render legal services
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Exception to Confidentiality:
INTENT TO CAUSE DEATH OR SUBSTANTIAL BODILY HARM |
Atty MAY reveal confidential info if
(1) atty reasonably believes that (2) disclosure is NECESSARY to PREVENT (3) reasonably certain death or substantial bodily harm CA: must (1) make good faith effort to talk client out of committing act and (2) inform client of decision to reveal confidences |
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Exception to Confidentiality: FRAUD OR FINANCIAL CRIME
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MAY reveal info if
(1) client used or is using atty's services to commit crime AND (2)disclosure would prevent or mitigate substantial financial loss |
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Exception to Confidentiality: ATTY DEFENSE TO MALPRACTICE
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Atty can reveal confidential info that is (1) NECESSARY to establish (2) a PERSONAL CLAIM OR DEFENSE
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Exception to Confidentiality: COMPELLED
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May be compelled by (1) law (2) controlling ethical duties; or (3) final court order
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Duty of Loyalty to the Client
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Rule: If a concurrent interest of the atty, another client, or a third party MATERIALLY LIMITS or is DIRECTLY ADVERSE to loyal representation, atty must not take on the representation unless (1) objective and reasonable belief that he can represent everyone effectively (CA doesn't require belief to be reasonable); (2) he informs each affected client (if must breach confidentiality to inform, consent is not possible); (3) the clients consent in writing (CA doesn't require consent if conflict is personal...just written disclosure); and (4) the consent is REASONABLE...may require written advice to client to consult outside counsel
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Duty of Loyalty Acronym
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RICE
Reasonable to consent Informs each client Consent in Writing Effective representation |
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Imputed Disqualification
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Attorneys that work closely together are treated as a unit
exception: (1) when conflict arises from previous govt service or (2) purely personal interests (and can set up an ethical wall) |
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Is there imputed disqualification if the lawyer leaves the firm?
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Yes, if (1) the matters are substantially related and (2) any remaning lawyer has material confidential information
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Remedies for for Conflict of a Duty of Loyalty
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1) refuse the case
2) advise clients to get separate counsel 3) withdraw |
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Conflicts between lawyer and client: Interest in Subject Matter of Litigation
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lawyer should not acquire a propriety interest in the action except a lien on property to secure payment of fees and work on contingent fee basis
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Conflicts between Lawyer and Client:
BUSINESS ACTIONS |
Lawyer may enter into business with a client only if:
(1) terms are Fair to the client (2) terms are fully Disclosed to the client 3) client has an opportunity to consult Outside counsel; and 4) client provides written Consent First Discuss Over Coffee |
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Conflicts between Lawyer and Client:
Publication Rights Contracts |
ABA: must wait until representation ends
CA: will uphold K only if client clearly understands and consents |
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Conflicts b/t Lawyer and Client:
Loans/Advances to Client |
ABA: No financial assistance to client permitted EXCEPT for: (1) advancing court costs and litigation expenses in contingent fee case; and (2) atty may pay court costs and litigation expenses on behalf of INDIGENT client
CA: Prohibits the promise of paying prospective client's debts to gain his business; but loans are allowed in all matters (incl non-litigation matters) for any purpose after atty is hired IF THERE'S A WRITTEN IOU |
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Conflicts b/t Lawyer and Client:
LIMITATIONS ON MALPRACTICE LIABILITY |
1) lawyer can't proscriptively limit malpractice liability
2) settlement of malpractice claim requires WRITTEN ADVICE to client to consult outside counsel |
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Use of Former client's Information Relating to the Representation
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Violates (1) duty of confidentiality and (2) duty of loyalty
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Gifts to lawyer (or his family)
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ABA: atty must not (1) solicit a substantial gift from a client or (2) draft a legal instrument for a client who is not your relative if it provides a substantial gift to atty (or atty's relative)
CA: Atty is only prohibited from INDUCING the gift |
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Close relationships with other lawyers in the same matter
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atty cannot oppose a party represented by her relatie without informed client consent
CA: extends the rule to any intimate relationship |
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Lawyer as a necessary witness
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general rule: atty cannot serve as trial counsel if he's likely to be a necessary witness
exceptions: (1) testimony is on an uncontested matter (2) or relates only to nature and value of legal services rendered to client (3) or withdrawal of atty for the purpose of testifying would result in substantial hardship to client bc atty adds distinctive value to the case (#3 inapplicable in CA) CA - trial counsel is prohibited from testifying as a witness only if before a JURY (but exceptions #1 and #2 apply even to jury trials in CA) AND also allows testimony before jury if client consents in writing |
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Conflicts Among Clients
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Generally: atty can represent clients having POTENTIAL clients when they reasonably consent, but not when they have ACTUAL conflicts
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Clients on Opposite Sides of the Same Matter
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It is never reasonable to assert a claim by one client against another client in the same matter (consent cannot undo this)
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Opposing current client in another pending matter
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Impermissible unless you have the REASONABLE CONSENT of both clients
CA: allows an atty to represent a policyholder and his insurance provider where the insurer's interest is only as an indemnity provider |
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Conflicts Stemming from Prospective Clients
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Atty may not represent a client with interests adverse to a prospective client in the same or substantially related matter if he has rec'd info from prospective client that could substantially harm prospective client UNLESS: (i) written confirmation of informed consent from both client and prospective client OR (ii) disqualified atty is timely screened and does not share the fee
CA: client is defined as someone who consults with atty, whether or not atty-client relationship results |
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Advertising: California rule about vulnerable clients
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In California, communications that are delivered to a potential client in a time of physical or mental stress, or that are delivered at an accident scene, hospital, or health care center, are presumed to be false and misleading unless the lawyer can prove otherwise.
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What is the "practice of law"?
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Engaging in activities that call for the professional judgment of a lawyer.
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Ads in General
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Traditionally, professional ethics rules banned lawyer advertising However, the Supreme Court recognized lawyer advertising as commercial speech protected by the First and Fourteenth Amendments and held that a state may not flatly prohibit lawyer advertising unless it is false or misleading.
Commercial speech may be limited by regs that (i) serve a substantial govt interest; (ii) directly and materially advance that interest; and (iii) are narrowly tailored to serve the substantial interest. |
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Direct Mail Advertising
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Although a lawyer must not seek fee-paying work by initiating a personal or live telephone contact, a lawyer is not prohibited from sending truthful, nondeceptive letters to persons KNOWN TO FACE A SPECIFIC LEGAL PROBLEM.
But attys CANNOT send letters to persons they KNOW do not wish to communicate with the attys. Mailings seeking fee-paying work must be clearly labeled as advertisements. |
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Solicitation
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A lawyer must not seek fee paying work by initiating live or telephone contact with a prospective client who is not a lawyer and with whom the lawyer has no personal, family, or prior professional relationship.
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California Presumed False/Misleading Ads
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i) communications delivered to a potential client who is in the hospital or who is suffering from physical or mental stress;
ii) mailings that seek fee-paying work and that are not clearly labeled as ads; iii) communications containing testimonials or endorsements without a disclaimer that the testimonials/endorsements are not a promise about the results in the potential client's case. |
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CA Statutory Restrictions on Adds
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CA lawyer can't make ads that contain:
i) a guarantee or warranty of the outcome of a case; ii) words/symbols that suggest quick cash or a quick settlement; iii) an impersonation of a lawyer/client without disclosing that it's an impersonation; iv) a dramatization of an event w/o disclosing that it's a dramatization; and v) a contingent fee offer that does not warn that a client who loses a case must still pay litigation costs if that is the arrangement. |