Duty of competence:
Duty of competence: must use the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Duty of diligence:
Duty of diligence. Must diligently, promptly, and zealously pursue your case to completion.
Duty of communication:
Duty of communication: You must keep your client informed about the case, including settlement offers, and returning phone calls. Must furnish all information necessary to allow the client to make intelligent decisions in the case
Control:
Control: Client must make the key decisions that affect substantial rights.
The duty of loyalty (Conflicts of Interest):
The duty of loyalty (Conflicts of Interest): The atty must exercise her professional judgment solely for the benefit of the client, free of compromising influences and loyalties.
Duty of confidentiality:
Duty of confidentiality: The atty may not reveal anything related to the representation of a client without her consent.
Forming AC Relationship:
Forming AC Relationship: A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest a lack of consent to do so, and the lawyer knows or reasonably should know th
Duties to Prospective Clients
Duties to Prospective Clients A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client Discuss = a two way communication – not unilateral (from the comments) Even when no AC relationship ensues… lawyers shall not use or reveal that info it’s confidential, even if you don’t take the case
How can L gain Competence
L may gain competency by 1) associating w/ lawyer reasonably believed to be competent, or 2) acquiring sufficient learning and skill before performance w/o undue expense or delay
Examples of Non-dilligence
- Taking forever to file a motion 2. Abandoning client 3. Overlooking Statute of limitations 4. Not terminating relationship with client (preferably in writing).
Settlement Offer
If settlement offer made client(s), L must convey offer to all Cs and get agreement (joint clients must agree on division of settlement)
Objective of Rep and Means Pursued
L must abide by C’s decisions regarding objectives of rep and consult with C as to the means pursued. C may decide on settlements or plea bargains, whether to testify, whether to waive jury trial.
Frivolous Lawsuits
L must not accept employment if he knows or should know purpose of suit is frivolous (not frivolous to make criminal prosecutor prove each element of crime)
Reasonable request for information from client
L must Respond to reasonable request for information
Exceptions of duty of confidentiality
Exceptions
Exceptions:
- Informed Consent
- Ordered by law,court, or ethics rules
- To collect fee or protect lawyer
- To get ethics advice
- Impliedly authorized to carry out the representation of the client
- Prevent reasonably certain death or substantial bodily harm;
- Issue here is that the lawyer does not HAVE to disclose – the rule only says “may disclose”
- If the client killed someone – already happened – confidential, cannot disclose that
- But if the client is going to kill someone in the future, may disclose
- If an innocent person is on death row – that is reasonably certain death, may disclose info that lawyer believes the client did the crime
- Prevent a client from commititing a crime that would would result in substantial financial loss and the client has used or is using L’s legal services to commit that crime
- The crime-fraud exception can render the privilege moot when communications between an attorney and client are themselves used to further a crime, tort, or fraud.
- Civil litigation between to persons who were formely the joint clients of the attorney
- Can furnish evidence of competency or intention of client to dispose of property by will or intervivos transfer.
Imputed disqualifications Firm:
Imputed disqualifications Firm: One L’s COI disqualifies entire firm, unless it’s 1) due to L’s personal interest, 2) L is screened from participation in subject matter of former representation, given no fee, and former C notified in writing, or 3) L leaving the firm
Gift from client:
Gift from client: A lawyer cannot induce or solicit a substantial gift from a client. Cannot prepare an instrument giving himself a gift unless related to client
Sexual relation with C:
Sexual relation with C: L may not have sexual relations with C, unless existed before AC rel. Not imputed
Pecuniary interest in litigation subject matter:
Pecuniary interest in litigation subject matter: Only allowed as lien to secure fees, contingency agreement
Loans (advancing money to C):
Loans (advancing money to C): L cannot provide financial assistance to C in connection w/ lit, except for… 1. Advancing litigation expenses in contingency case (no personal loans), paying for an indigent C.
Joint clients (concurrent conflict):
Joint clients (concurrent conflict): Cannot represent C if there’s a concurrent COI, unless L reasonably believes he can competently and diligently represent both Cs + each affected client gives informed, written consent (IWC)
- Concurrent COI exists where: 1) representation of C is directly adverse to another C’s interests or 2) significant risk that representation of C will be materially limited by interests of another
Former clients:
Former clients: If relationship w/ former C will “substantially affect” relationship w/ new C, must give written disclosure to new C.
- “substantially affect”? Law or facts overlap, or confidences of one would hurt one to help another
Duty to safe keep client funds:
Duty to safe keep client funds: Must keep separate funds in trust account. Comingling is permitted to the extent reasonably necessary to pay bank charges. Any disputed portion must remain in the trust account
Organization as client:
Organization as client: L represents the organization; he must conform his rep to the concept that C is the org itself
- i. When L knows that action of (rogue) officer or employee is likely to result in substantial injury to the org, L must proceed as is reasonably necessary in the best interest of the org
- [ABA] Report up the chain of command up to the highest level (board of directors). If this fails, and there is substantial risk of harm to the org, L may reveal info outside to the extent necessary.
- When L is dealing with org’s constituents (directors, officers, e’ee, members, s/h) and reasonably should know org’s interests are adverse to those of constituents (e’ee sues), L must explain C’s adverse interest 1. L must obtain consent of org’s counsel before communicating with a constituent of the org
