1) Court, 2) adversaries, 3) legal profession, 4) third parties, 5) public
FIRAC: look for fact triggers, identify every major duty lawyer has to each client, find conflicting duties, resurvey for duties to public/profession.
Duty of confidentiality
A lawyer has a duty not to reveal anything related to the representation of a client without her consent. Applies regardless of whether the client has requested that info be kept confidential. Attaches even without an a-c relationship. And disclaimers must be crystal clear.
Exceptions to the duty of confidentiality
1) client consents (you have implied consent to reveal info nec. to render your legal services), 2) defending yourself when your CL sues for malpractice, brings disciplinary action against you, or doesn't pay, forcing you to initiate suit. Info nec. to establish your defense, 3) you reasonably believe it will prevent death or substantial bodily harm (CA, talk them out) permissive 4) fraud or financial injury if he is using your services (not in CA)
Duty of loyalty
No conflicts of interest
Conflicts of interests
1) Flag and discuss both actual and potential conflicts of interest 2) Responsible even if you are ignorant unless short term rep. w/ ct program or non-proftit. 3) imputed to any group of lawyers work closely together or share responsibilities (CA disqualifies but does not discipline lawyers who violate imputed conflicts) Ethical wall.
Conflicts of interest are sometimes ok test
1) Reasonably believe you can rep everyone effectively (CA does not require objectively reasonable), 2) you inform each affected CL, 3) CL consents, confirmed in writing.
Case-by-case factual analysis steps.
conflicts between or among clients
1) opposite sides of matter --> never
2) opposing a current client in another matter --> rarely (request all client consent).
*CA statutory exception: there is no conflict when a lawyer reps a policyholder and his insurance co as joint clients, where insurer's interest in each matter is only as indemnity provider
3) two clients with inconsistent positions --> yes, but if either would be disadvantaged, must obtain consent
4) representing multiple clients in same matter, or acting as intermediary --> potentially. raises sig risks that services may become materially limited.
5) new clients in matters related to former clients': cannot take on new client with interests materially adverse to former clients without former's consent.
6) former gov lawyer no in private practice -- if personally and substantially worked on matter, barred from working on same matter in private practice without gov sonent.
Can never represented a client when (conflict of interest)
1) Opposing sides of same matter (imputed)
Representing CL in another matter, and someone else wants to sue them
Rarely, a representation adverse to a current client requires all clients consent.
CA exception for when lawyer represents policy holder and insurance company when insurance company is only an indemnity provider.
Two clients with contradictory positions
Fine unless either would be disadvantaged, in which case you need consent.
Representing multiple clients in the same matter
Prevents significant risks. These potential conflicts generally require disclosure and consent. E.g.'s: a corp and any of its directors, officers, shareholders, or employees; both spouses in an uncontested divorce or drafting wills.
Always look for confidentiality breaches in these cases.
Duty of loyalty and confidentiality together mean...
You cannot take on a CL with interests materially adverse to a former client without the former's client consent.
You cannot use non-public confidential information against a former client without their consent.
Imputed disqualification on similar cases after you leave the firm: what's the test?
Since imputed disqualification applies, we ask: is the matter substantially related or the same and do any remaining lawyers have confidential information.
Used when you move to a new firm. Your conflicts will not be imputed if:
1) you are timely and effectively screened, 2) you receive no part of the fee, 3) your former CL receives notice, and 4) you supply periodic certifications of compliance.
Government lawyer now in private practice: conflicts
Gov lawyer who personally and substantially worked on a matter may not work on the same matter at the firm. In this case: screening, no fee, notification.
Working on regs, etc. do not count.
Same rule applies to judges, clerks, arbitrators.
When is there a conflict b/w lawyer and clients
1) Gifts--cannot solicit and cannot draft if donee is you are close relative 2) cannot limit malpractice liability (settle only after written advice to consult with outside lawyer first) 3) publication rights (general v. hollywood rule-judge approve that CL clearly understands and consents) 4) loans, non under ABA, in CA, written loan agreement, 5) no using confidential info in a way adverse to CL 6) Lawyer as witness (ABA test: uncontested, fees, distinctive value--CA, bench ok, jury need CL consent
When potential conflict between C-L: business transactions
1) First discuss over coffee (fair to the client, disclosed in understandable writing, opportunity for CL to get outside counsel, CL consents *CA written disclosure). 2) start up companies: stock payment acceptable if its fair and reasonable under circumstances known to L when made. 3) non-profit boards allowed, corporate boards discouraged
Conflicts due to 3rd parties
Your sole duty is to your CL. Someone else can pay with CL's consent.
SEC: mandatory internal reporting if there are violations. If you think it's reasonably necessary to prevent fraud, perjury, substantial injury to the org or investors, or to rectify financial injury from a violation that involved your services than you may disclose to the SEC.
Fee agreements in non-contingent and contingent fee cases
Under Financial Responsibilties
1) Non-contingent cases: how fee is calculated, what services are covered, and the lawyer-client duties (in writing in CA)
2) Contingent fee cases: the %, what expenses are deducted, and whether the percentage comes before or after expenses, CA: also, how work not covered byt he contingency fee will be paid, that fees are negotiable. 3) Fees must be reasonable (ABA) or not unconscionable high (CA)
When can you split fees?
1) Only with other laywers.
2) You can split fees with lawyers in other firms only if the total fee is ethical and there is written disclosure and the client consents. ABA: fee must be split proportionally, unless each firm is jointly responsible.
Exceptions: death benefits, salaries, and non-profits.
May pay usual referral charges
Ok as long as they are not exclusive and you explain the arrangement to the client
Law related services
Ethical rules apply, even if they aren't law services. You have to tell a client if you refer them to someone else you control that a-c safeguards don't apply.
You have a duty to safeguard it by labeling it and keeping it in a safe place such as an office safe.
$$ held should be in a CL's trust account (interest bearing). Do no borrow or commingle funds with personal money. IOLTA ok if its small amounts of money. Fee dispute, must keep the money in the trust account until resolution.
Must keep account records for 5 years.
What if you don't have liability insurance?
ABA: must disclose in annual filing. CA: must disclose in writing to CL who needs more than four hours of work.
Duty of competence: penalties
1) discipline by the Bar, 2) disqualification in the litigated matter, 3) civil malpractice liability.
Definition of competence
Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
When you don't know relevant law you can:
1) learn it (as long as you can without undue expense or delay) or you can associate with another lawyer
Other duties to a client
Diligence: duty to zealously advocate for your CL and pursue the case to completion
Communication (settlement offers and answering messages)
Not a bus, but should take on a reasonable amount of pro bono work.
Cannot take a case if it would require you to violate a law or ethical rule.
Scope of representation and decisionmaking power
CL makes decisions about substantive rights, L makes decisions about legal strategy
Must if 1) continuing would violate a law or ethical duty, 2) physically or mentally incompetent 3) discharged. When you do you must 1) timely notify CL, 2) return all unspent retainer/advance expense money, 3) return all paperwork needed to pursue case, even your work product. In CA only if 1) L knows CL is acting without probable cause or to harass 2) violation of RPC would result, but not of other law.
Restrictions on Advertising, constitutional?
Protected under limited commercial speech rights. Ok if 1) gov asserts a substantial interest, 2) regulation directly advances that interest, and 3) narrowly tailored.
1) No false or misleading. 2) Cannot claim specialization unless you are a certified specialist (CA: education, experience, evaluation, and an examination, ABA: approved orgs). 3) Cannot harrass (targeted mail ok as long as listed ad materials) 4) must be labled ad, dramatization must be disclaimed, identify 1 lawyer responsible, 2 years of records
In person. ABA: real time internet. CA, not. "May not seek pecuniary gain by initiating live or telephone contract with a prospective CL that you don't have a relationship with or with whom you have no prior business or familial relationship."
CA* Presumes improper communications made at the scene of an accident, en route to medical facility, or should no not in physical or mental state to exercise good judgment.
Duty of Candor to the Court & Fairness to your adversaries
You cannot engage in ethical conduct involving dishonesty, fraud, deceit or misrepresentation. These duties can trump conflicting duties of confidentiality and loyalty to your client.
Duty to present facts and evidence truthfully
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 you previously presented.
Civil: must refuse to call Criminal: 5A right to testify. 6A effective assistance of counsel. So you must take reasonable remedial measures. 1) Try to convince, 2) w/d, 3) ABA: tell the judge, CA* allow to testify in narrative fashion.
Duties end with proceeding, you find out afterwards, counsel to recant, but nothing more.
If you reasonably believe but do not know, rules are permissive.
Duty to produce evidence
1) You must not suppress evidence that you or your client has a legal obligation to reveal or produce. You must not obstruct access to or tamper with fruits or instrumentalities of the crime. (Line b/w physical evidence and info). 2) L can be compelled to testify as to the original location or condition of evidence that she moved or altered. So look but don't touch. 3) Can retain evidence for a reasonable time to prepare case and conduct tests as long as they don't alter the evidence.
Prosecutors duty to disclose evidence
Must timely disclose evidence favorable to the defense. This ethical duty exceeds Const. brady obligation, requiring disclosure regardless of admissibility or impact on the outcome.
Ex parte proceedings
Must volunteer relevant info, including harmful facts
Duty to state the law truthfully
No knowingly making a false statement of law to court, and if law is controlling and on point you have to cite it
Duty to uphold the law
If continued representation would require you to commit a crime or assist in a crime, you must withdraw. If you client is continuing in illegal acts but you are not, you may withdraw.
General duties of fairness
Must behave honestly in all dealings--about upholding the dignity of the profession. Must act to promote public confidence.
Documents sent unintentionally
Must stop reading and return.
Sent intentionally, you can mine the metadata.
Talking to OP
If represented, not w/o laywers consent (any person. If its a corporation, cannot talk to officer, director, managing agent, and anyone who's statements would bind the org or constitute an admissible on its part.
Dealing with the press
1) No out of court statements that you reasonably should know could have a substantial likelihood of prejudicing the case. Unless in response to 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. Unrelated, prosecutors must have probable cause to take a case.
Finish the end
TEMPORARY: 1) Outside lawyer may give and get paid for consulting services 2) Pro hac vice from court 3) mediation or arbitration that arises out of her practice in home state 4) temporary practice in CA if it is reasonably related to home state practice
Multi-jurisdictional practice, longer term
PERMANENT: If admitted in one jx and not disbarred or suspended in any other if 1) L is salaried employee of only client (in house) OR 2) legal services authorized by local or federal law.
CA DIST (stricter), in house cannot make ct appearances, must register, can't represent employees/shareholders/officers as individuals. Legal services attorneys: can work under close supervision of barred L, but only if haven't failed the bar w/in the last 5 years. 3 yr. max.
Vicarious liability of a partner or supervisory lawyer
ABA: 1) orders or ratifies conduct involved or 2) L is partner/manager at firm or has direct supervisory authority over other lawyer and knows of conduct at a time when its consequences can be avoided or mitigated and does not take reasonable remedial action. CA DIST. No assisting in, soliciting, or inducing an ethics violation. Other firm members (much broader) can be disciplined if they approved it or knew about it and did nothing to prevent it.
sale of a law practice
Cal RPC differs in that it does not require seller to cease practicing in geographic area (ABA does), notice to client rules more complicated, does not permit sale of "area of practice" (must be substantially all). In both, CL fees cannot increase, must be sold to lawyers,
Additional CA restrictions on advertising
1) No words or symbols that suggest quick cash or settlement, 2) no impersonations or dramatizations without disclosure 3) no contingent fee offers that don't warn CLs they must pay litigation costs if that is the arrangement.
CA ads that are presumed misleading
1) potential CL in hospital or suffering from physical or mental stress, 2) mailings that are not clearly labeled as ads, 3) testimonials without disclaimer/GWP
Concurrent conflict of interest buzz words
Rep. of a CL is directly adverse to the interest of another CL or there is a significant risk that the rep of a CL will be material limited by the L's personal interests or by the interests of another CL, former CL, or 3rd person
Must reasonably believe (CA not objective) she can competently and diligently represent each affected party. In CA, standard applies to potential and concurrent conflicts. Need written disclosure, as opposed to informed, written consent.
Limiting liability for malpractice insurance
ABA: CL must be independently represented
CA: under no circumstances
ABA: Only if prior.
CA: Prohibits 1) demanding sexual relations with a CL as a condition of rep, 2) sex through coercion or undue influence, 2) representing a CL incompetently because of a sexual relationshop
Sarbanes Oxley Reporting Requirements (5 Rs)
1) If L becomes aware of credible evidence of violation she must report to CLO. Similar material violation under fed. or state law. 2) CLO must take all reasonable steps to get CL to take appropriate response. 3) If no appropriate response, must report to board, audit committee, or outside directors 4) May reveal to SEC violations that could cause substantial injury to inventors, lawyers services used, or CL perjury (conflicts with CA law!). 5) If fired, may report firing to board (retaliation)
Permissive withdrawals (7)
1) Wont have materially adverse effect on CL (no CA) 2) CL persists in course of action involving L services that L reasonably believes is criminal or fraudulent 3) CL has used services to perpetrate crime/fraud (no CA, must be continuing) 4) CL's repugnant or fundamental disagreement course of action5) CL fails to fulfill obligation 6) Unreasonable financial burden on L (no CA) 7) other good cause
Special rule of prosecutor
1) PC, 2) efforts to ensure right to counsel 3) no waivers of important pre-trial rights from pro se 4) timely disclosure of all potentially favorable evidence/promptly if reasonable likelihood 5) reasonable care to prevent extrajudicial statements prosecutor would be prohibited from making, 6) not subpoena OC unless no feasible alternative, 7) refrain from extrajudicial that could heighten public condemnation 8) reasonable efforts to investigate possible wrongful convicts.
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