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Prof Resp


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Duties to Clients
Duties to Third Parties
Candor (To Ct and Public)
Fairness (To Adversaries and Others)
Dignity / Decorum (To Ct and PRofession)
Cannot reveal anything related to the representation of client w/o her consent
- Can attach before L-C relationship
- Discourse that could reasonably lead to discovery of info
- Continues indefinitely after representation
Disclaimers of Duty of Confidentiality
Must be in sufficiently plain terms
Exceptions to Confidentiality
1. Consent
2. Fraud / Financial Crimes
- No exception in CA
- ABA exception if client using your services and disclosure would prevent / mitigate substantial financial loss
3. Death or Great Bodily Harm
- CA - if reasonable must make a good faith effort to talk client out of it and then inform of decision to disclose
- ABA - MAY reveal what is necessary to prevent act if reasonably believe it is necessary
4. Defending yourself
5. Compelled by law or ct order
Duty of Loyalty
1. Potential or Actual Conflict of Interest - interest of you, another client or third party materially limits or is adverse to representation
2. Cannot take representation unless (1)reasonably believe you can represent both parties (2) inform each client (3) get consent
3. Remedies for conflict - refused to take case; advise clients to get separate counsel; withdraw
Imputed Disqualification
Any group of lawyers that works together closely share conflicts and will be disqualified
CA - Lawyer will not be subject to discipline for imputed conflicts
1. Conflict arises from previous govt service
2. Conflict is purely personal
3. Ethical wall makes representation possible
Potential Conflicts of Interest - Between L and C
1. Business Transactions or Adverse Interest
2. Publication Rights Contracts
3. Loans / Advances to Client
4. Limiting Liability
5. Use of information
6. Gifts to L or L's fam
7. Close relationship w/L from other side
8. Trial counsel as necessary W in trial
Potential Conflicts of Interest - B/t clients
1. Opposite sides; Same Matter
2. Opposing Present Clients Interests (but not same matter)
3. Two client's with inconsistent legal positions
4. Multiple Clients in Same Matter
5. New clients in Matter Related to Former Client
6. Former Govt Lawyer now in private practice
Business Transaction W/Client
Can do IF
1. Terms are fair to C
2. Fully disclosed in understandable writing
3. C has opportunity to consult with outside lawyer
4. C provides written consent
Can get paid in stock if fair and reasonable.
Service on BOD
1. No bar BUT strongly discouraged - likely to breach duty of confidentiality and loyalty.
2. Cannot defend any of other directors or officers in action related to corp b/c have fiduciary duties to corp - direct conflict
3. Legal service org - can serve on BOD but cannot knowingly participate in any actions adverse to your clients
Publication Rights Contracts
CA - discouraged before end of proceeding BUT ok if judge is satisfied that client clearly understands and consents
ABA - NO before end of proceeding
Loans and Advances to Client
1. Before representation - cannot promise to pay C's debts
2. After hired - can loan C $ for any reason; must get written IOU
1. No assistance
2. Exceptions - litigation costs of indigent; contingency fee
Limiting Liability
1. Cannot limit C's right to report ethical violations
2. Cannot limit malpractice liability unless C independently represented
3. Can only settle malpractice claim after you give C written advice to contact outside L
Use of information
NO - breaches both confidentiality and loyalty
Gifts from C to L
1. Cannot solicit substantial gift from C
2. Cannot draft legal instrument giving gift to you (unless for close relative)
Me vs. Rob
NO - unless informed consent
(not imputed)
Trial counsel as W
CA - attny cannot testify unless client consents in writing
ABA - cannot testify unless (1) will not prejudice C; (2) testimony uncontested or re: fees; (3) you have distinctive value to case as L
Representing clients on opposite sides of same matter
NO - direct conflict and unreasonable to represent both
Imputed DQ applies
Opposing Present client's interest
CA - absolute bar on taking case adverse to present client - no matter if completely different matters
ABA - no absolute prohibition but rarely reasonable
Two clients w/ inconsistent legal positions - for and gainst constitutionality of statute
OK with consent
BUT if either party disadvantaged, then must withdraw
Multiple Clients in same matter
Insurance co and insured; Corp and any directors,officers, employees, shareholders; spouses
1. Initial retention is usually just a potential conflict
2. If direct conflict arises
- Best option - withdraw; inform both clients to seek separate counsel
- If gained confidential info re: one party, must at least w/draw from party opposed to him
Criminal - conflicts may violate right to effective assistance
New Clients in Matters Related to Former Clients
Cannot take on client
1. in same or substantially related matter
2. if new client's interests are materially adverse to former client
3. UNLESS former gives consent
If confidential info from former client may be relevant to new clients matter - n/g
Once you are gone, can your former firm represent someone against your former client?
NO - if matters are substantially related / same AND someone at the firm still has confidential information
Former Govt Lawyer in Private Practice
CA - prosecutors can't defend on same case; no general rule
1. Gov't lawyer worked personally and substantially
2. on a MATTER (specific dispute, people, issues)
3. Have to get written consent from govt before can work on it in private practice
Imputed DQ - your firm can represent if:
1. You are screened off
2. You don't share any fee
3. Inform gov't
If your former firm represented C, can you represent another C in same matter?
If same or substantially related matter - cannot represent new client
1. IF interests are materially adverse to old client and
2. You acquired material confidential information about old C
3. Unless old C gives informed, written consent
Conflicts Due to Third Party Interest
1. Compensation from Third Party
2. Organizational Clients
Compensation from Third Party
OK w/informed cleint consent
Organization Clients
1. Must act in best interests of organization
2. If threat of substantial injury
- ABA - up and out (if necessary to prevent substantial injury)
- CA - reporting up is permissive; reporting out is prohibited
Securites Lawyers
L finds out that client is violating fed securities laws
1. Must report to CEO or CLO
2. If no response - must go to BOD or highest authoritiy
3. If necessary to prevent fraud/substantial injury OR if L's services were used - can disclose confidential info w/o consent to SEC
Fiduciary Duties
1. Attny Fees
2. Client Trust Acct
Non-Contingency Fee Agreements
1. How fee is calculated
2. What services are covered
3. L's and C's duties
CA also requires WRITING (unless under $1000; corporate c; routine business; emergency)
Contingency Fee Agreements
1. Your percent
2. What expenses to be deducted
3. Percent taken before or after expenses
CA also requires - how work not covered by contingency fee will be paid; that L's fees are negotiable
When can you have a contingency fee agreement?
CA - divorce cases are OK but cannot encourage breakup of saveable marriage
What is a valid fee?
CA - cannot be unconscionably high; L must submit to arbitration
ABA - must be reasonable (labor; novelty; difficulty; skill)
Fee Splitting
NOT OK with non-lawyers (unless death benefits or compensation of employees)
Rules for Fee Splitting w/Ls
ABA - Division of fee must be PROPORTIONAL to amt of work done; no referral fees
CA - Splitting is ok as long as total fee is not unconscionable and is not increased; no proportionality requirement (referrals are fine); client must know and consent
Partnership w/non-lawyers in providing legal services
NOT OK - non-lawyers cannnot be partners or shareholders - cannot control lawyer's judgment
BUT can enter into reciprocal referral agreement IF
1. Not exclsive
2. Explain to C at time of referral
If legal services are provided by separate entity controlled by L?
Must take reasonable steps to make sure that C knows that lawyer/client protections don't apply
Client Trust Accounts
1. Duty to safeguard - label and store C's property in safe place
2. Money Held for C - in client trust account
- No borrowing or comingling
- Individual interest bearing acct - interest to C
- Pooled client trust acct - small funds, several Cs, checking acct - interest to ABA fund for legal services
3. Duty to Keep good records
- CA - must keep record of client property for 5 yrs
4. Must notify C of money received on his behalf
If there is a dispute over fees - what do you do with the money?
Either dispute with C OR third party claim
- Must withhold disputed portion in trust acct till resolved
Duty of Competence
Using legal knowledge, skill, preparation and thoroughness as reasonably necessary for representation
1. Subject to disqualification, discipline, malpractice
2. If don't know the relevant law, cannot take case unless
- can put in time to learn w/o undue expense
- can associate w/lawyer competent in area
Duty of Diligence
Diligently, promptly and zealously pursue case to completion
Duty to Communicate
1. Keep client informed about case - settlement; phone calls
2. If settlement offer for jt clients, must convey to all and agree on division before accepting
Accepting Representation
1. Don't have to
2. Suggested pro bono and accepting defenseless or oppressed
3. MUST reject if would violate law or ethical duty to accept (mental/physical issues - competence; frivolous legal argument - candor)
What if C asks you whether she must testify truthfully on stand?
Decision to testify is hers
1. Tell about 5th Amd priv against self incrimination
2. Tell must testify truthfully
3. Tell decision of whether to testify is hers
How can you withdraw from case?
1. Client fires you
2. Mandatory withdrawal
3. Permissive Withdrawal
Mandatory withdrawal
If continuing representation would violate legal/ethical rule
- you are incompetent
- you would be assisting in crime if continuted
- you would be pursuing a frivolous claim
Permissive Withdrawal - FAIR
1. Financial Burden to you (CA allows withdrawal if breach of contract to pay fees)
2. Acted Illegally - ABA allows withdrawal for past crime/fraud
3. Insists on following objective you find repugnant
4. Refuses to fulfill obligation after you have warned of withdrawal
Duties on Withdrawal
1. Timely notice to C
2. Promptly return - unspent fee and advances; material papers and property of C (even WP and even if C has not paid)
Duty of Candor to Public / Duty to Dignity of Profession
Advertising and Solicitation
1. Free Speech - commercial speech - intermediate scrutiny
1. Must not be false or misleading; cannot raise unjustified expectations (CA - no GWP)
2. Cannot advertise as specialist unless certified
3. Must not harass - targeted mail OK must must be labeled ADVERSITING
4. Every ad must be labeled as advertising and as dramatization / impersonation
5. Must identify at least one responsible person; keep records for 2 yrs
CANNOT seek professional employment for pecuniary gain by initiating LIVE/TELEPHONE contact w/prospective client
- CA - live/telephone is literal - does not apply to internet
- CA - cannot communicate w/ clients you should know are not in the physical/mental state to exercise reasonable judgment
Duty of Candor to Court and Fairness to Adversary
Lawyer cannot engage in conduct involving dishonesty; deceit; misrepresentation; fraud
1. Duty to Present Facts / Evidence Truthfully
2. Duty to Produce Evidence
2. Duty to State law truthfully
3. Duty to Uphold Law
Duty to Present FActs / Evidnece Truthfully
Must refuse to make; must correct any false statement of material fact OR offer evidence you KNOW is false
- Client perjury - must not knowingly facilitate; if reasonable belief but some doubt as to falsity, then can let them testify
- Witnesses - cannot make them unavailable; cannot put on stand if know false testimony
Client perjury in criminal case
1. D has 5th Amd right to testify; 6th Amd right to counsel
2. You have duty of confidentaility
3. If you know he intends to lie - duty to take reasonable remedial measures
- Try to talk him out of it
- Try to withdraw from case
- CA - allow D to testify in narrative and do not use it
- ABA - tell judge
Duty to Produce Evidnece
1. Must not suppress any evidence you or your client has legal obligation to reveal
2. Can look but not touch
3. If touch - then must give it to police and testify about where you found it (but don't have to say how you knew where to find it)
Duty to State Law Truthfully
Must cite controlling adverse authority
Duty to Uphold Law
- Preventing C from causing death / serious bodily harm
- Mandatory withdrawal if representation requires you to commit / assist in committing crime
Duty of Fairness to Others
Lawyer has duty to behave honestly in all dealings
1. Duty of Fairness in communications with others
2. Dealing with the Press
3. Duties of prosecutors
Duty to deal fairly - communication with party represented by counsel
Must not communicate with party you knowis represented by counsel in the matter
UNLESS Counsel granted permission or party is otherwise allowed
Duty to deal fairly - communication with constituents of represented organization
CA - Must get consent of org's counsel if constituent
1. Supervises / consults w/org's lawyer about matter
2. Has authority to bind organization re: matter
3. Conduct may be imputed to org
4. FORMER employees - do not need org's counsel's consent
Duty to deal fairly - communication with unrepresented person
Can communicate directly BUT
1. Cannot imply that you are disinterested
2. Must clear up misunderstandings about your role
3. Must not give advice other than to obtain counsel if reasonble chance of adverse interests
Duty of Fairness - Dealing with Press
Must avoid out of ct statements that you know are reasonably likely to prejudice case
Special Duties of PRosecutors
1. PC
2. Must protect accused's rights
3. Brady
Preserving Dignity of Ct
1. Duty to preserve impartiality and decorum of tribunal
2. Duty to expedite
Duty to preserve impartiality and decorum of tribunal
1. Don't try to influence improperly
2. Don't talk to jurors before end
3. No chicanery
4. No abusive conduct
Duty to expedite
CA - must not delay
ABA - affirmative duty to expedite
Duties to Dignitiy of Profession
1. Advertising/Solicitation
2. Unauthorized Practice of Law
3. Private Conduct
4. Reporting Misconduct
Reporting Misconduct
ABA - L must report violation of rules if raises substantial question as to fitness to be lawyer
CA - do not have to report others but self-reporting required
Duties of Subordinate Lawyers
Under supervision of atty; that attny ratifies/orders you to do something skethcy
1. If clear violation - you can be disciplined
2. If unclear - partner is solely responsible
Inaction - CA - disciplined for failing to prevent violation you know about

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