1
Q
Duties - general categories
A
Mnemonic: Clients love fierce counsel; courts feel differently
Duties to client - Confidentiality - Loyalty - Financial responsibility - Competence Duties to others - Candor - Fairness - Dignity and decorum
2
Q
Duties - to client - confidentiality - in general
A
Rule: Lawyers may not reveal anything related to representation of client w/o consent
- Duty can attach before lawyer-client relationship formed or even if none formed
- W/o relationship, party seeking to disqualify has burden of proving confidences imparted
- Duty continues past end of relationship
3
Q
Duties - to client - confidentiality - exceptions
A
- Consent: express & implied to carry out rep
- Defense & nonpayment
- Prevent harm
- Death or substantial bodily harm (CA distinction)
- ABA ONLY: fraud or crimes causing financial injury - Compelled (CA distinction)
4
Q
Duties - to client - confidentiality - exceptions - defense & nonpayment
A
May reveal information necessary to establish claim or defense if client:
(i) sues lawyer for malpractice
(ii) brings disciplinary actions against lawyer
(iii) refuses to pay lawyer
5
Q
Duties - to client - confidentiality - exceptions - death or substantial bodily harm
A
May reveal information if reasonably believe it will prevent reasonably certain death or substantial bodily harm
- CA: if reasonable, must (i) make good-faith effort to persuade client not to commit act; (ii) inform client of decision to reveal confidences
6
Q
Duties - to client - confidentiality - exceptions - fraud or crimes causing financial injury
A
ABA ONLY!
May reveal information if client used or is using lawyer’s services to commit crime, and the disclosure would prevent or mitigate substantial financial loss
7
Q
Duties - to client - confidentiality - exceptions - compelled
A
May reveal information if compelled by law or court order
- ABA: also may reveal if compelled by legal ethics rule, or to obtain legal ethics advice
8
Q
Duties - to client - confidentiality - attorney-client privilege
A
Evidentiary privilege that allows client to refuse to testify and prevent lawyer from testifying about confidential communications between them or their agents (applies only to communications, not all information!)
- ABA: continues past death
- CA: ends when estate settled & rep discharged
9
Q
Duties - to client - confidentiality - attorney-client privilege - exceptions
A
- Client seeks advice to enable future fraud/crime
- Suit between attorney and client
- Suit between joint clients
- Competency or intention of client who has attempted to dispose of property by will or inter vivos transfer is at issue
- CA ONLY: necessary to prevent criminal act lawyer reasonably believes is likely to result in substantial bodily injury or death of a person
10
Q
Duties - to client - loyalty - in general
A
- Lawyers have a duty of loyalty to their clients and thus must avoid concurrent conflicts of interest
- CA: duty to avoid actual AND potential conflicts - A concurrent conflict exists if:
- One client will be directly adverse to another
- Significant risk that representation of client will be materially limited by interest of another client, lawyer, or a third party
11
Q
Duties - to client - loyalty - consent to conflict
A
Lawyer may undertake representation despite conflict if:
- Lawyer believes can competently and diligently represent both clients
- ABA: belief must be reasonable - Client informed
- Client consents, confirmed in writing
- CA: if conflict personal to lawyer, written disclosure sufficient; no need for client consent
12
Q
Duties - to client - loyalty - specific conflicts - between or among clients
A
- Representing clients on opposite sides of the same matter (never allowed)
- Opposing a current client in another matter (consent needed)
- Representing two clients with inconsistent positions (consent may be needed)
- Representing client in aggregate settlement (written consent needed for settlement)
- Representing multiple clients in the same matter or acting as an intermediary (consent needed)
- Representing new clients in matters related to former clients (consent needed)
13
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client
A
- Receiving gifts to lawyer or lawyer’s family
- Limiting and settling liability
- Entering into publication rights contracts
- Extending loans and advances to client
- Entering into business transactions with or acquiring interests adverse to client
- Acquiring proprietary interest in action
- Serving as counsel and witness
14
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - receiving gifts
A
Lawyer must not solicit (ABA) or induce (CA) a substantial gift from a client
- ABA: lawyer also may not draft a legal instrument for a client who is not close relative if it provides a substantial gift to lawyer or lawyer’s relative
15
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - limiting liability
A
Cannot limit client’s right to report lawyer for ethical or professional violations and cannot prospectively limit malpractice liability
- ABA: can limit prospective malpractice liability if client independently represented
16
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - settling liability
A
Cannot settle malpractice claim w/ unrepresented client w/o advising client in writing to seek independent representation and giving opportunity to do so
17
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - entering into publication rights contracts
A
- ABA: Cannot enter into publication rights contracts before representation has ended.
- CA: Case law discourages contracts before end of proceedings, but tolerates them if judge is satisfied client clearly understands and consents
18
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - extending loans and advances to client
A
- ABA: forbids financial assistance, except litigation expenses for indigent client, and advance of litigation expenses in contingent-fee case
- CA: forbids promising to pay a prospective client’s debts, but allows loans to a client in all matters for any purpose w/ written loan agreement
19
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - entering into business transactions with or acquiring interests adverse to client
A
Mnemonic: First discuss over coffee!
Lawyer may enter into business w/ client or obtain adverse interest if:
- Terms are FAIR to the client,
- DISCLOSED in understandable writing,
- Client has OPPORTUNITY to consult an outside lawyer, and
- Client provides written CONSENT
20
Q
Duties - to client - loyalty - specific conflicts - between lawyer and client - serving as counsel and witness
A
- ABA: prohibited unless: (i) lawyer’s testimony is uncontested or (ii) regarding nature and value of services rendered or (iii) lawyer’s distinctive value to case means w/drawal would impose substantial hardship on client
- If testimony might prejudice client, consent required, and conflict is imputed
- CA: testimony permitted in all bench trials and in jury trials with client’s consent
21
Q
Duties - to client - loyalty - specific conflicts - due to third-party interference
A
- Someone other than client pays (consent required)
- Liability insurer involved (particular problems and special rules)
- Corporate clients (particular problems)
22
Q
Duties - to client - loyalty - specific conflicts - due to third-party interference - someone other than client pays
A
Payment for services from a third party is permitted only with informed client consent
- CA: consent must be in writing
23
Q
Duties - to client - loyalty - specific conflicts - due to third-party interference - liability insurer involved
A
- Whether insurer is client varies by state; CA says it is joint client w/ insured (but no conflict if insurer is joint client in one case and joint opponent in another)
- Potential conflicts:
1. Is event covered?
2. Does insurer try to control settlement / should settlement w/in policy limit be accepted?
3. Does insurer unreasonably limit costs?
24
Q
Duties - to client - loyalty - specific conflicts - due to lawyer’s personal life
A
- Engaging in a sexual relationship with a client
- Opposing a party represented by counsel with whom lawyer has relationship
NOTE: These are not imputed!
25
Duties - to client - loyalty - specific conflicts - due to lawyer's personal life - engaging in a sexual relationship with a client
- ABA: sexual relationship prohibited unless it predated attorney-client relationship and does not interfere with representation
- CA: relationship permitted but attorney may not demand sexual relations as a condition of representation, enter into relations by coercion or undue influence, or represent a client incompetently because of relationship
26
Duties - to client - loyalty - imputed conflicts
1. Any group of lawyers that work together closely or share responsibilities share each others' conflicts (other than personal conflicts)
- CA: disqualifies, but does not discipline, a lawyer for imputed conflicts
2. Affected clients can consent
3. Special rules apply for conflicts based on lawyer's association with prior firm or gov
27
Duties - to client - loyalty - imputed conflicts - based on lawyer's association with prior firm
- Lawyer from prior firm has conflict if representing new clients in matters related to former clients
- Firm can avoid imputed conflict if:
1. Disqualified lawyer screened
2. Receives no part of fee
3. Affected former client gets notice
4. Former client gets periodic certifications on request
28
Duties - to client - loyalty - imputed conflicts - based on lawyer's former government work
- Former gov lawyer has conflict only if worked "personally and substantially" on "matter"
- Firm can avoid imputed conflict if:
1. Disqualified lawyer screened
2. Receives no part of fee
3. Government gets notice
- CA: explicitly disqualifies prosecutor on case from later working for defense
29
Duties - to client - loyalty - imputed conflicts - firm based on lawyer's prior association
If lawyer who represented C1 left firm, remaining lawyers cannot represent C2 if:
1. Matters are substantially related or the same
2. Any remaining lawyer has confidential, material information
30
Duties - to client - loyalty - specific conflicts - due to lawyer's personal life - opposing a party represented by counsel with whom lawyer has relationship
- Must obtain informed client consent if closely related by blood or marriage to counsel representing another client in same or substantially related matter
- CA: also applies to lawyers who live together, have an intimate personal relationship, or themselves are in an attorney-client relationship
31
Duties - to client - loyalty - specific conflicts - due to third-party interference - corporate clients - obligations in general
1. Lawyer must act in best interest of corp, even if officer, employee, or other associated person acts to the contrary
2. If lawyer learns associated person acting/will act in manner that [i] violates law (and is attributable to corp) or [ii] violates obligation to corp, and violations likely to result in substantial injury, must report up if in corp's best interest
32
Duties - to client - loyalty - specific conflicts - due to third-party interference - corporate clients - reporting out
- ABA: allows but does not require reporting out if lawyer reports up and no action taken
- CA: prohibits reporting out
- Sarbanes Oxley: mandates reporting up to CEO or CLO, then to highest legal authority if no action, finally reporting out to SEC if lawyer reasonably believes necessary to prevent fraud, perjury or substantial injury to corp/investors, or to rectify financial injury from violation involving lawyer's services
33
Duties - to client - financial responsibility - duty to avoid fee misunderstandings
Agreements must include how fee calculated; what services are covered; lawyer and client's duties
- CA: must be in writing unless unless (i) fee is under $1K; (ii) corporate client; (iii) routine services for a regular client; (iv) emergency or impractical; (v) client waives in writing
34
Duties - to client - financial responsibility - contingent fees
- Written fee agreement signed by client w/:
1. Lawyer's percent
2. Expenses to be deducted from recovery
3. Whether percent taken before/after expenses
- CA also requires agreement explain:
4. How work not covered by contingency will be paid
5. Notification that fees negotiable
35
Duties - to client - financial responsibility - contingent fees - restrictions
- ABA: Not allowed in criminal or domestic relations cases
| - CA: Rules silent; case law allows contingent fees if they don't "promote dissolution"
36
Duties - to client - financial responsibility - amount of fees
- ABA: fees must be reasonable, taking account of labor, novelty, difficulty, skill and timing required, result obtained, experience of and other demands on lawyer, fee arrangement, etc.
- CA: fees must not be unconscionably high
37
Duties - to client - financial responsibility - referral fees
ABA: referral fees prohibited; may divide fees w/ other lawyer if division proportional to work done, unless each lawyer jointly responsible
- Fee split must be in writing, state share each lawyer gets, signed by client
CA: referral fees allowed if client knows all terms, consents in writing, and total fee not increased
38
Duties - to client - loyalty - specific conflicts - between lawyer and client - acquiring proprietary interest in action
Lawyer must not acquire proprietary interest in cause of action or subject matter of litigation, but if authorized by law may acquire lien to secure payment
- CA: No retaining liens
39
Duties - to client - financial responsibility - client property
Duty to safeguard clients' property by labeling and storing it in a safe place such as an office safe
40
Duties - to client - financial responsibility - client funds
1. Money held for client goes in client trust account; no commingling
- Normally, individual, interest-bearing trust acct
- Small amounts go in pooled client trust account with IOLTA going to state bar
2. In a fee dispute or if 3P has a lawful claim on client funds or property in custody, duty to withhold disputed portion in the client trust account until resolution of claim
41
Duties - to client - financial responsibility - liability insurance
- ABA: administrative suspensions (but not discipline) for lawyers who fail to report on annual registration whether they have liability ins.
- CA: requires lawyers w/o ins to disclose in writing at time of engagement if client needs more than four hours of work
- Exceptions for gov and in-house lawyers
42
Duties - to client - competence
- Must have legal knowledge, skill, thoroughness and preparation reasonably necessary for representation (but can act in emergency)
- Failure to meet duty may result in: (a) discipline by Bar; (b) disqualification in a litigated matter; (c) civil malpractice liability
43
Duties - to client - competence - related duties
1. Duty of diligence: diligently, promptly and zealously pursue case to completion
2. Duty to communicate: e.g., sharing settlement offers and answering client communications
3. Duty as adviser: exercise independent judgment and render candid advice
44
Duties - to client - competence - accepting representation
1. Lawyers free to accept or to reject any case
2. Lawyers must reject case if would violate a law or ethical rule to take it
2. May limit scope of representation w/ informed client consent
45
Duties - to client - competence - scope of representation
1. Client makes decisions about substantive rights (e.g., whether to testify in criminal case, accept settlement)
2. Lawyer makes decisions on legal strategy (e.g., choice of motions, what discovery to seek)
3. In disagreement, can limit scope w/ informed client consent
4. Must not assist or counsel client in conduct that is criminal or fraudulent
- ABA: may reveal to prevent financial injury; must reveal if only way to avoid assisting
46
Duties - to client - competence - withdrawal - mandatory
Lawyer must withdraw if:
1. Fired or physically/mentally impaired
- CA: only fired
2. Continuing would violate ethical rule or law
- CA: only ethical rule
3. CA: client acting w/o probable cause to harass or injure
47
Duties - to client - competence - withdrawal - permissive
1. May withdraw if good cause and w/drawal will not cause undue delay or disruption
- Client acts illegally; insists on actions lawyer finds repugnant or imprudent
2. May withdraw for financial reasons
- ABA: continued rep would impose unreasonable financial burden or client substantially fails to fulfill obligation to lawyer after being warned
- CA: client breaches a fee or expense agreement
48
Duties - to client - competence - withdrawal - procedures
1. Timely notice
2. Prompt return of:
- Unspent fees/advances
- All property and material papers of client, including work product
3. CA: does not allow w/holding property for payment
49
Duties - to public - decorum - advertising - constitutional floor
Lawyers have commercial free speech rights; gov must show:
1. Substantial interest
2. Regulation directly advances that interest
3. It is narrowly tailored
50
Duties - to public - decorum - advertising
- Refers to communication with public at large
1. Must not be false or misleading; cannot omit material information; cannot claim specialization unless certified
2. Cannot raise unjustified expectations or make unverifiable comparisons
- CA: guarantees, warranties, or predictions of result presumptively improper
3. Must be labeled as advertising (and if applicable dramatization or impersonation)
4. Must maintain records of content and placement for 2 yrs
51
Duties - to public - decorum - solicitation
- Refers to individualized contact with layperson
1. Cannot seek professional employment for pecuniary gain by initiating live or phone contact w/ prospective client w/o prior professional, personal or family relationship
2. Can target w/ direct mail people who need rep, but cannot harass or solicit someone who doesn't want to receive and must label communications as advertising
52
Duties - to public - decorum - solicitation - CA presumptions
CA presumes improper communications:
1. Made at scene of an accident or en route to a medical facility
2. To potential clients that lawyer should know are not in the physical or mental state to exercise reasonable judgment
53
Duties - to adversary - fairness - evidence
1. Duty to produce: must not suppress any evidence that lawyer or client has legal obligation to reveal or produce, regardless of loyalty duty
2. Duty not to destroy or tamper: must not obstruct access to or tamper w/ fruits or instrumentalities of crime (may retain for r'ble time to prepare case, e.g., to conduct tests so long as will not alter)
- TIP: Distinguish between physical evidence and confidential information; can turn over w/o disclosing source; can look w/o touching
54
Duties - to tribunal - candor - evidence
1. Must not knowingly offer false evidence
2. May refuse to offer evidence reasonably believed to be false (but special rule for criminal defendants' testimony)
3. Must take reasonable remedial measures if false evidence offered (but duty ends w/ rep)
- ABA: counsel client to correct; may seek permission to w/draw; last resort must disclose enough info to correct
- CA: rules silent; can use only means consistent w/ truth but can't break confidences
55
Duties - to tribunal - candor - facts and law
Must not knowingly:
1. Make false statement of material fact or law
2. Fail to correct previous false statement
3. Fail to disclose controlling directly adverse authority
4. ABA: fail to disclose adverse facts in ex parte proceeding
56
Duties - to tribunal - candor - evidence - testimony by client
Must not knowingly facilitate client perjury; if criminal defendant wants to testify falsely:
- ABA: counsel to testify truthfully or not take stand; try to w/draw; tell judge
- CA: allow defendant to testify in narrative fashion, but do not further deception
57
Duties - to tribunal - candor - evidence - testimony by others
Must not counsel or assist a witness to testify falsely or to become unavailable
58
Duties - to adversary - fairness - documents
Must return w/o reading documents sent inadvertently
59
Duties - to represented persons - fairness - communications w/o counsel
Must not communicate with "person" known to be represented by counsel on subject of inquiry unless counsel, law, or court gives permission
- CA: limits to "parties" represented by counsel
60
Duties - to represented entities - fairness - communications w/o counsel
Consent required for interviews of:
1. Officer, director, or managing agent
2. Any current employee whose communication might bind or be imputed to organization or constitute admission on its part
61
Duties - to adversaries and third parties - fairness - in general
- Must not lie to people or mislead them as to interests
- Must not violate legal rights of a person to obtain evidence
- Must not means with no purpose but to delay, burden, or embarrass
62
Duties - to public - communications with press
Duty not to interfere with D's right to a fair trial; must avoid out of court statements that reasonably should know have a substantial likelihood of materially prejudicing the case.
- Exceptions: matters in public record & routine booking information; warning public or informing of an investigation; statements required to protect client from substantial undue prejudice due to statements by others
63
Duties - to public - communications with press - by prosecutors
Prosecutors and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused
64
Duties - to public - special duties of prosecutors
Basic duty of a prosecutor is to seek justice, not just to win cases; must:
- Refrain from proceeding w/o probable cause
- Timely disclose exculpatory evidence, even after conviction
- Seek to investigate and remedy wrongful convictions
- Ensure accused appraised of rights and not seek unrepresented waiver
65
Duties - to unrepresented persons - fairness
1. Must not state or imply disinterested
2. Must clear up misunderstandings in this regard
3. Must not give advice beyond retaining counsel if client's interests have reasonable chance of being adverse to unrepresented person
66
Duties - to court - decorum - duty to preserve the decorum and impartiality of the tribunal
1. Must not try to influence anybody improperly
- Must not have improper ex parte contact w/ court
- Before and during trial must not talk to prospective or impaneled jurors; after trial may interview consenting jurors
- CA: must tell them they can refuse an interview and have a copy of any resulting court declaration.
2. Must not engage in chicanery
- Must not refer to inadmissible material or matters unsupported by evidence; assert personal knowledge of facts at issue.
3. Must preserve tribunal decorum
- Must refrain from abusive or obstreperous conduct, belligerence, or theatrics
67
Duties - to court - decorum - duty to expedite cases
1. Duty to avoid delay
- ABA: affirmative duty to expedite cases
- CA: must not delay cases to harass an adversary, or for lawyer's own personal gain or convenience.
2. Duty to follow valid procedural rules or court orders, making a good-faith challenge to validity
3. Duty not to abuse or obstruct discovery
68
Duties - to public - decorum - unauthorized practice of law
1. Must not engage in unauthorized or unlicensed practice; practicing in a state while suspended or not admitted is a violation unless allowed by law, a pro hac vice order, or under limited exceptions
2. May not assist others to engage in authorized practice
- Look for activities "beyond the capacities and knowledge of laypersons"; limited exception if professional judgment not required
69
Duties - to public - decorum - unauthorized practice of law - multi jurisdictional practices (MJP)
- ABA: allows temporary practice by an out-of-state lawyer in good standing if (i) associates w/ locally admitted lawyer who actively participates; (ii) services relate to ADR; (iii) matter arises out of matters reasonably related to practice in a state where lawyer admitted and forum does not require a pro hac vice appearance
- CA: more restrictive rules; generally require the lawyer to register w/ CA Bar, pay dues, get CLE, and be subject to CA ethics rules
70
Duties - to public - dignity - reporting ethics violations
- ABA: must report to appropriate prof. auth. any other lawyer or judge's violation of RPC in any legal or non-legal context if it raises substantial question as to honesty, trustworthiness, or fitness
- CA: must self-report if charged with certain crimes, found civilly liable for fraud or breach of fiduciary duty, disciplined in another jurisdiction, or under certain conditions, sued for malpractice or sanctioned; reporting of others not required but can be disciplined for knowing of colleague's violation and doing nothing to prevent it
71
Duties - to public - dignity - subordinate and supervisor liability for ethics violations
1. If lawyer is under the control or supervision of another attorney who ratifies or orders action violating an ethical rule:
- supervisor always liable
- if debatable violation, subordinate not liable
- if clear violation, subordinate liable
2. Managing partners must also make reasonable efforts to ensure that everyone in firm follows professional obligations, including non-lawyer assistants
- Supervisors who know of violations and fail to stop are liable
