Term
| Attorney's Duty to Client |
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Definition
-Duty of loyalty
-Duty of confidentiality
-Duty of competence
-Duty of financial integrity |
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Term
| Attorney's Duty to 3rd Parties |
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Definition
-Duty to opposing parties in litigation
-Duty to accept representation
-Special duty of prosecutors |
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Term
| Attorney's Duty to the Court |
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Definition
-Duty of candor
-Duty of honesty
-Duty to witnesses and jurors |
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Term
| Attorney's Duty to the Profession |
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Definition
-Duty to avoid unauthorized practice of law
-Duty to avoid false or misleading advertisements
-Duty to not improperly solicit clients |
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Term
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Definition
| Don’t reveal anything related to the representation of a client without her consent. |
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Term
| Exceptions to Duty of Confidentiality |
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Definition
1) Consent: if client consents after consultation, a lawyer may reveal otherwise confidential information
2) Defending yourself: establishing your claim or defense; can reveal confidential information if client sues you for malpractice, brings disciplinary actions against you or refuses to pay, forcing you to sue for fees. You can also reveal confidential information to seek an ethics opinion.
3) Compelled by court order, law or other ethical duty |
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Term
| If death or substantial bodily harm is involved, can the attorney reveal confidential information obtained from the client? |
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Definition
Yes, you MAY reveal what’s necessary to prevent an act, if you reasonably believe it will prevent reasonably certain death or substantial bodily harm.
In CA, you must first, if reasonable, make a good faith effort to:
-Persuade the client not to commit the act and
-Inform the client of your decision to reveal his confidences |
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Term
| If fraud or crimes involving financial injury, can the attorney reveal confidential information obtained from the client? |
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Definition
You may reveal your confidences to prevent fraud or crimes causing financial injury IF the client is using your services to commit the crime AND disclosure would prevent or mitigate substantial financial loss.
In CA, there are NO financial exceptions so attorney cannot reveal |
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Term
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Definition
| If an interest of another client, yourself, or a 3rd party materially limits or is adverse to loyal representation, you have a conflict of interest. |
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Term
| Are groups of lawyers who work closely or share responsibilities share each others conflicts? |
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Definition
Yes, they are imputed to the other group of attorneys.
In CA, the attorney is disqualified from representation but not disciplined. CA also relaxes imputation of conflicts that are purely personal to the lawyer and for short-term legal services under non-profit or court programs |
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Term
| If there is a conflict interest, what are the attorney's options? |
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Definition
• Refuse to take the case
• Advise multiple clients to get separate counsel
• Withdraw
• Screen off other colleagues
• Take the case in certain circumstances |
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Term
| How to screen off from other attorneys? |
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Definition
1) Are timely & effectively screened
2) Receive no direct part of the fee, and
3) Your former client receives notice and
4) Periodic certifications of compliance with these conditions
*Client consent may also be required* |
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Term
| When can an attorney represent a client despite a conflict of interest? |
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Definition
1) You reasonably believes you can represent everyone effectively despite the potential or actual conflict
2) Representation is not prohibited by law
3) Representation does not involve a claim by one client against another client who is represented by the lawyer in the same case
4) You inform each affected client (If an attorney’s duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict, then consent may not be possible.)
5) The client consents in writing (CA allows certain conflicts that are personal to the lawyer to be merely disclosed in writing to the client and not that the client consents.)
*may also need to be screened* |
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Term
| If there is a direct conflict, can attorney represent a client? |
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Definition
| No, it is unreasonable to represent both. |
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Term
| Can you argue both for and against a case on two different appeals? |
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Definition
| Yes, positions usually don’t create conflicts but if either would be disadvantaged, you must obtain consent. |
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Term
| Can an attorney represent multiple clients in the same matter or act as an intermediary? |
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Definition
Possibly, but it raises significant risk that your service may become materially limited as a result of the others’ interest. These are potential conflicts generally require disclosure and consent.
However, in criminal cases dual representation may also impede 6th amendment's guarantee of effective counsel. |
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Term
| If confidential information from a former client might be relevant to a new client, does this violate a rule? |
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Definition
| Yes it may be violating his continuing duty of confidentiality and his duty of loyalty to his former client. |
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Term
| Can you take on a new client with interests materially adverse to a former client? |
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Definition
| Not without the former clients consent. |
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Term
| If an attorney leaves a firm and takes its direct conflict with him, can the firm now represent that client? |
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Definition
Not if:
-The matters are substantially related or the same, AND
-Any remaining lawyer has confidential material information |
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Term
| If an attorney moves to a new firm, will your conflicts extend to your new colleagues? |
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Definition
Not if the following are satisfied:
1) Are timely & effectively screened
2) Receive no direct part of the fee, and
3) Your former client receives notice and
4) Periodic certifications of compliance with these conditions |
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Term
| Rule for former government lawyer now in private practice: |
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Definition
ABA bars a government lawyer who worked “personally and substantially” on a “matter” from working on the same “matter” later in private practice without the government’s consent.
“Matter” is a specific dispute between specific people over specific issues. |
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Term
| When can members of your firm represent a client who you have a conflict of interest with? |
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Definition
Only if:
1) You are screened off
2) You do not share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK;) and
3) Your former government employer is informed (consent not needed...just need to be informed) |
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Term
| Gifts to the lawyer or the lawyer's family |
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Definition
| You must not solicit a substantial gift from a client, or draft a legal instrument for a client who is not your close relative, if it provides a substantial gift to you or your relatives. |
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Term
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Definition
You cannot limit your client’s right to report you for ethical or other professional violations. You cannot limit your malpractice liability when you enter into a relationship with your client, unless under ABA Rules, the client is independently represented in making the agreement.
CA bars malpractice limits. If a client later does make a malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first. |
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Term
| Can a lawyer accept publication rights halfway through trial? |
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Definition
ABA: Not before representation has ended
CA: Maybe. CA case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents. |
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Term
| Can you loan or give advances to your client? |
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Definition
ABA: Forbids financial assistance except for litigation expenses for an indigent client, and the advance of litigation expenses in contingent fee cases.
CA forbids promising to pay a prospective client’s debts, but allows loans to a client in all matters for any purpose with a written loan agreement (so long as client promises to repay the lawyer for the loan.) |
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Term
| When can you enter into a business relationship with a client? |
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Definition
Only if:
-Terms are fair to the client
-Disclosed in understandable writing
-The client has an opportunity to consult an outside lawyer and
-Your client provides written consent (in CA, written disclosure) |
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Term
| Can an attorney serve on Board of Directors? |
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Definition
Yes, for a non-profit legal services organization.
There is also no bar to sitting on the Board of a corporate client, although that is strongly discouraged, because it is likely to compromise duties of loyalty & confidentiality |
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Term
| Can you be a counsel and witness in the same trial? |
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Definition
No unless:
-Your testimony is uncontested; or
-Regarding the nature and value of services rendered or
-If your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might create prejudice to the client, consent is required, and the conflict is imputed to colleagues. (i.e., expert in a certain field)
CA is less restrictive: you may testify in any bench trial, and, if the client consents, in a jury trial. |
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Term
| Can you go against a party represented by a relative? |
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Definition
No
CA recognizes other intimate relationships. CA also requires disclosure of any legal, business, or personal relationship with any party or witness in the same matter. |
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Term
| Can you receive payments for your services to a client from a 3rd party? |
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Definition
| Yes, but your sole duty is to your client. The payment must not interfere with the lawyer's independent professional judgment or with the lawyer-client relationship. |
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Term
| When representing an organization, the attorney must act in the interests of: |
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Definition
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Term
| If you discover a violation of securities laws, the lawyer: |
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Definition
-Must report the matter to the CEO or Chief Legal Counsel of the company
-If they do not respond, you must go to the board or the highest authority in the company.
-If you reasonably believe it necessary to prevent fraud, perjury, or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the Securities Exchange Commission without client consent.
ABA mandates "reporting up" and permit "reporting out"
CA still prohibits reporting out but federal preemption allows CA lawyers to comply with federal law. |
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Term
| In non-contingent fee cases, agreement must include: |
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Definition
1) how the fee is calculated
2) what services are covered, and
3) the lawyer and client’s duties
CA also requires that the agreement be in writing unless:
• The fee is under $1,000
• With a corporate client
• For routine services for a regular client; or
• It’s an emergency or impractical |
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Term
| In contingent fee cases, there must be: |
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Definition
A written fee agreement signed by the client that contains:
-% that you get as a fee if successful
-What expenses are to be deducted from recovery
-Whether your percent is taken before or after expenses
CA also requires that the agreement states how work not covered by the contingency fee will be paid, and that lawyers' fees are negotiable. |
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Term
| Contingent fees may NOT be used in: |
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Definition
Domestic relations or criminal cases
CA rules are silent, but its case law allows contingent fees if they don’t promote dissolution. |
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Term
| If client fires attorney who was on contingency and hires a new attorney, can the old attorney recover? |
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Definition
| Yes, if client wins the case, then the attorney can recover in proportion to the work he did. |
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Term
| Fees must be reasonable and take into account: |
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Definition
The labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement etc.
CA: Fees must not be unconscionably high |
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Term
| In fee dispute agreements, is lawyer required to go to arbitration? |
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Definition
-ABA encourages arbitration in fee disputes
-CA requires a lawyer to participate in fee arbitration if the client sues and requests it. |
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Term
| Can attorneys split fees with other lawyers? |
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Definition
Yes, with lawyers in their own firm.
You may split fees with lawyers outside your firm only if the total fee is ethical and there is written disclosure and client consent.
ABA: requires the division be proportional to the work done by each attorney, unless each is jointly responsible for the action.
CA: total fee cannot be unconscionable and client consents |
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Term
| Can lawyers split fees with non-lawyers? |
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Definition
No, generally not allowed but a lawyer may pay the usual charges of a qualified lawyer referral service.
Exceptions:
-Death benefits paid to a deceased lawyer’s firm or heirs for his work
-Fees passed on as salaries to non-lawyer employees, and
-Sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer. |
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Term
| Partnership with non-lawyers |
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Definition
| If it involves providing legal services, it is prohibited. Non-lawyers CANNOT be partners, shareholders, officers, or control or direct your professional judgment |
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Term
| Can you have reciprocal referrals with other professionals? |
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Definition
| Yes, if they are not exclusive and you explain the arrangement to the client |
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Term
| Client funds and property |
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Definition
For physical things: You have a duty to safeguard your client’s property by labeling and storing it in a safe place such as an office safe.
For money: You must place money in a client trust account. This includes money received on her behalf, and her advances for costs, expenses and fees. Do not borrow or commingle funds with your personal money! |
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Term
| Do all client funds have to placed in separate accounts? |
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Definition
| Smaller funds held for short periods of time for multiple clients can be deposited together in a pooled client trust account. The interest (IOLTA) goes to a State Bar to fund legal services for the poor. |
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Term
| If you have a fee dispute or if a 3rd party has a lawful claim over your client's funds or property in your custody: |
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Definition
| You must withhold the disputed portion in the client trust account until resolution of the claim. |
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Term
| Record keeping for your client |
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Definition
Attorney must render accountings, notify him of moneys received on his behalf, and pay promptly money due to him.
CA requires you to keep records of client property for 5 years after final distribution. |
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Term
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Definition
ABA: allows administrative suspensions (but not discipline) for failure to report whether you carry insurance on your annual registration.
CA: If you don’t have insurance, CA requires, at the time of engagement, to disclose that in writing to any client needing more than 4 hours of work.
Exceptions: government & in-house lawyers. |
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Term
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Definition
You have a duty to render competent service to your client. Competence means using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
If you do not know the relevant law, you cannot take on a matter unless you can learn it without undue expense or delay, or you associate with a lawyer competent in the area. |
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Term
| If you do not render competent services to your client, you are subject to: |
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Definition
-Discipline by the Bar
-Disqualification in a litigated matter
-Civil malpractice liability |
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Term
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Definition
| You have a duty to diligently, promptly, and zealously pursue your case to completion |
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Term
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Definition
| You have a duty to keep your client informed about the case including settlement offers and answering messages. If a settlement offer is made to joint clients, you must convey the offer to all and be sure they agree on the division of the settlement before accepting. |
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Term
| Can an attorney accept or reject any case? |
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Definition
Yes, but you should accept, as part of your duty to the public and profession: (a) the case of the defenseless or oppressed if your only reason to refuse is selfish and
(b) a fair share of work without charge (pro bono).
Conversely, you must reject a case if you would violate a law or ethical rule to take it. |
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Term
| Scope of Representation - What does client decide? What does lawyer decide? |
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Definition
Client makes decisions about her substantive rights (e.g., whether to testify in a criminal case or accepting settlement case).
The lawyer makes decisions on legal strategy (e.g., choice of motions, what discovery to seek). |
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Term
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Definition
| You must withdraw from a pending case if fired or if continuing would violate a law or ethical rule |
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Term
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Definition
You may withdraw from a case if you convince the court there is good cause, and your withdrawal will not cause undue delay or disruption. Recognized causes include a client’s acting illegally, or his insistence on actions you find “repugnant” or imprudent.
-ABA: recognizes when the representation will result in an unreasonable financial burden or when the client substantially fails to fulfill an obligation to you after being warned.
-CA: allows withdrawal if your client breaches a fee or expense agreement |
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Term
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Definition
Provide timely notice to the client, and promptly return:
-Any unspent fee and expense advances, and all property and material papers of the clients. Include everything needed to pursue the case, even your work product.
CA forbids holding your client’s materials hostage to get paid! |
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Term
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Definition
In the duty of loyalty, the ABA prohibits consensual sex with your client unless you already had a preexisting sexual relationship.
CA also excuses preexisting relationships, but allows new relations, with cautions |
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Term
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Definition
Must not be false or misleading – do not mislead or omit information
CA presumes improper any ad that contains guarantees, warranties or predictions of a result. No testimonials or endorsements may be used unless there is an express disclaimer that they are not a guarantee, warranty or prediction of a result. (not indicative of what they will receive) |
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Term
| Can you explain fields of practice or specialization? |
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Definition
| You can explain your fields of practice, such as “practice limited to federal courts.” But you may not advertise claims of specialization unless you are a “certified specialist.” The organization must be identified in the communication. |
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Term
| Requirement of advertisements |
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Definition
Targeted direct mail is ok but must meet exact guidelines for labeling as “Advertising Material.”
Every ad must be labeled as advertising and if applicable, “a dramatization” or “impersonation.” It must identify at least one lawyer responsible for its contents. You must keep records of the content and placement of any ad for 2 years. |
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Term
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Definition
Individualized contact with a layperson
Do not seek professional employment for pecuniary gain (profit) by initiating a live or telephone contact with a prospective client with whom you have no prior professional, personal, or family relationship.
ABA: Solicitation extends to real time electronic chat.
CA: Solicitation is either live or telephone (narrow). |
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Term
| Duty of Candor & Fairness to your adversary |
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Definition
| You cannot engage in conduct involving dishonesty, fraud, deceit or misrepresentation. |
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Term
| Duty to present facts & evidence truthfully: |
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Definition
| You must refuse to make a false statement of material fact or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously presented. |
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Term
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Definition
| You must not knowingly facilitate client perjury. |
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Term
| Client perjury + civil case |
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Definition
| In a civil case, you must refuse to call a witness, including your client, if you know he intends to perjure himself |
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Term
| Client perjury + criminal case |
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Definition
Criminal defendants have a 5th Amendment right to testify on their own behalf and 6th amendment right to the effective assistance of counsel. Counsel also has an ethical duty to protect client confidences.
Attorneys must:
Counsel client to testify truthfully or not to take the stand, then if that fails, try to withdraw.
If that fails:
-ABA: Tell the judge b/c the right to counsel and the duty of confidentiality do not shield perjury.
-CA: Allow the defendant to testify in narrative fashion but do not further the deception (e.g., don’t facilitate with questions, argue points later to the jury) |
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Term
| You must not counsel or assist a witness to testify falsely OR |
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Definition
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Term
| Can you pay your witnesses? |
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Definition
| You may pay basic expenses of a witness and reasonable fees for expert witnesses as long as payment is not contingent on the content of the testimony. |
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Term
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Definition
| You must not alter, destroy, or conceal any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty. You must not obstruct access to or tamper with fruits of instrumentalities of a crime. |
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Term
| Can an attorney retain evidence? |
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Definition
| Only for a reasonable time to prepare his client's case (e.g., to conduct tests so long as they will not alter the evidence) |
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Term
| Prosecutors have a special duty to: |
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Definition
| Timely disclose evidence favorable to the defense. |
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Term
| Duty to state the law truthfully |
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Definition
| Knowingly making a false statement of law to the court is subject to discipline. Be candid about the law and to cite to adverse authority if controlling and on point. Presenting frivolous claims or defenses is subject to discipline. |
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Term
| Documents sent inadvertently |
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Definition
| If you know it was inadvertently sent, you must stop reading and notify the opposing counsel. You must not copy, disseminate the document, or use it to your advantage; you will be disqualified. |
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Term
| Communication with adversaries & 3rd parties |
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Definition
| You must not lie to people or mislead them as to your interests. You must not violate the legal rights of a person to obtain evidence, or use means with no purpose but to delay, burden, or embarrass them. |
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Term
| Can you communicate with those represented by counsel? |
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Definition
Unless authorized by law or in giving a second legal opinion, you must not communicate with a “person” you know is represented by counsel on the subject of your inquiry without consent of his counsel.
CA: limits this to “parties” represented by counsel.
CA: consent is required for interviews of an officer, director or managing agent. The prohibition extends to any current employee whose communication might bind or be imputed to the organization or constitute an admission on its part. |
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Term
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Definition
| You have a duty not to interfere with a defendant’s right to a fair trial. You may respond to the press and public’s right to know, but you and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case. |
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Term
| Exceptions to dealing with the press |
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Definition
Matters in the public record or routine booking information, warning the public, informing them of an investigation, and statements required to protect your client from substantial undue prejudice from recent publicity, not self initiated.
Prosecutors and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused. |
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Term
| Special Duties of Prosecutors |
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Definition
| Basic duty of a prosecutor is to seek justice, not just to win cases. Prosecutors have higher ethical obligations than other lawyers. Among special duties, such as providing exculpatory evidence, they must have probable cause. |
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Term
| Duty to preserve decorum & impartiality of the tribunal (includes jurors) |
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Definition
Don’t try to influence anybody improperly. Before and during trial, you must not talk to any prospective or impaneled juror. After trial is over, you may interview juror if they consent
CA: You must tell them they can refuse an interview and have a copy of any resulting court declaration |
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Term
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Definition
ABA: you have an affirmative duty to expedite cases
CA: you must not delay cases to harass an adversary, or for your own personal gain or convenience.
You have a duty to follow valid procedural rules or court orders, unless you are making a good faith challenge to their validity. Do not abuse or obstruct discovery. |
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Term
| Unauthorized practice of law |
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Definition
| A lawyer must not engage in the unauthorized or unlicensed practice of law to protect the public from incompetence. Practice in a state while suspended or not admitted is a violation unless allowed by law, a pro hac vice order by the local court, or under limited exceptions. |
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Term
| When can an attorney practice out of state? |
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Definition
A lawyer may engage in temporary practice by an out-of-state lawyer in good standing if:
The lawyer associates with a locally admitted lawyer who actively participates in the matter, or
The services relate to alternative dispute resolution, or
The matter arises out of matters reasonably related to the lawyer’s practice in a state where she is admitted and the forum does not require a pro hac vice appearance.
CA: More restrictive. They generally require the lawyer to register with the CA Bar, pay dues, get continuing legal education, and be subject to CA ethics rules. |
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Term
| Must lawyers report misconduct of other lawyers? |
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Definition
ABA: Require lawyers to report to the appropriate professional authority any other lawyer’s or judge’s violation of the Rules in any legal or non-legal context IF it raises a substantial question as to that person’s honesty, trustworthiness or fitness as a lawyer.
CA: Does not require external reporting but can discipline you for knowing about a colleague’s disciplinary violation and doing nothing to prevent it. CA also requires self-reporting of being 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. |
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Term
| If you are under the control or supervision of another attorney. e.g., a senior partner, who ratifies, or orders you to take an action violation an ethical rule, is that ok? |
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Definition
It depends.
-Your ethical responsibility if it is a clear violation: You are subject to discipline if you follow it
-Your ethical responsibility if it is a debatable problem: The supervisor is solely responsible if you follow it.
-Your supervising partner’s ethical responsibility: If he ratified the action or knew of the conduct and failed to take action, he is in violation. |
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Term
| Managing partners duty in a firm |
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Definition
| Managing partners must also make reasonable efforts to ensure that everyone’s conduct in a firm comports with the professional obligations of a lawyer, including non-lawyer assistance. |
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