Glossary of non-mbe professional responsibility
Other Decks By This User
- What are the duties owed to clients?
- CLIENTS LOVE FIERCE COUNSEL
& other reasonable things
In your analysis remember to do each client separately.
- What are the duties owed to everyone other than clients (court, third parties, public, etc)
- COURTS FEEL DIFFERENTLY
& other reasonable things
- what is the general rule regarding The Duty of Confidentiality (to your client)?
- gen rule is you can't reveal anything related to the representation of a client without her consent.
Duty of confidentiality lasts indefinitely after the formal representation.
- What the rule regarding the attorney client privilege?
- the AC priv allows a client and his lawyer to refuse to testify about confidential communications between them or their agents.
The model rule applies whether or not the info is privileged.
In CA, the AC priv terminates when the client's case is settled.
- what are the three major exceptions to the duty of confidentiality?
- 1) consent
2) crimes--ABA says if he used or is using your services to commit the crime, and disclosure would prevent or mitigate substantial loss. Distinguish: In CA there is no confidentiality exception for financial crimes.; death or substantial bodily harm (you must first make a good faith effort to persuade the client not to commit the crime).
3) defending yourself (to establish your defense to malpractice or discipline or a client's refusal to pay fees).
- Describe the duty of loyalty to your client
- You have a duty of loyalty to your client. If an interest of you, another client or a third party materially limits or is adverse to loyal representation, you have a potential or actual conflict of interest.
- What do you do if conflicts emerge only after representation begins?
- disclose potential and actual conflicts as they arise and get further consent.
remedies: refuse to take teh case, advise multiple clients to get separate counsel or withdraw
- Under what circumstances may you take on representation that poses a conflict of interest?
- 1) you reasonably blief you can represent everyone effectively
2) you inform each affected client; and
3) the client consents in writing.
- what does imputed disqualification mean?
- this means that you and all members of your firm share conflicts.
Exceptions are when a conflict arises from previous government service, and when the conflict of the lawyer arises from a purely personal relationship taht would not affect the ability of other firm members.
- what is an ethical wall?
- this is when you block off any contact on a matter where there is a conflict of interest between the lawyer with the conflict and other lawyers on the firm.
- When can a client enter into business transactions with his lawyer or when can a lawyer obtain an interest adverse to the client?
- 1) the terms msut be fair to the client,
2) fully disclosed in understandible writing,
3) the client has an opportunity to consult an outside lawyer, and
4) your client provides written consent.
- Can you serve as a director, officer or member of a legal services organization?
- yes as long as you do not knowingly participate in a decision or action of the organization that is adverse to your clients.
- In CA can you make loan advances to your client? What does the ABA say?
- yes. loans are okay as long as you didn't promise to pay the debts to gain his business.
ABA says you cannot give financial assistance except for costs and litigation expenses when representing an indigent; and when the client promises to pay back advance of expenses.
- can you prospectively limit your liability?
- what is the rule regarding gifts to the lawyer or lawyer's family?
- 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 relative.
- can trial counsel be a witness in CA? what does the ABA say?
- CA prohibits attorneys testifying in jury trials unless the client consents inw riting. The ABA says you cannot serve as counsel and witness in same trial unless your appearance will not prejudice client adn testimony is uncontested or if your distinctin value to the case would mean withdrawl would impose hardship on the client.
- what is the general rule regarding CONFLICTS BETWEEN CLIENTS?
- generally you may represent clients with potential conflicts with the proper consent of all but it is almost never proper if their interests are in actual conflict.
CA: rules absolutely prohibit you from taking a case adverse to a client you are currently representing.
ABA: doesn't prohibit but it is rarely reasonable.
- What is the rule regarding insurance providers and policy holders as joint clients?
- in CA, there is no prohibition to representing a policyholder and his insurance company as joint clients where the insurer's interest in each matter is only as an indemnity provider.
- What is CA's rule regarding prosecutor's later working on defense of teh same case. What is the ABA's rule?
- CA explicitly prohibits this! ABA states that if gov't lawyer worked "personally and substantially on a matter" then it would be a conflict to work on that same matter later in private practice.
- What are the three ABA conditions for exception to imputed disqualification of colleagues of former government lawyers?
- 1) lawyer must be screened off; and
2) lawyer must not share in any part of the fee in teh matter (partnership shares or salaries established by prior agreement are okay); and
3) your gov't employer is informed (not consent).
- what is the general rule regarding conflicts due to third party interference?
- your sole duty is to your client, not to any third party.
- may you accept compensation from a third party?
- yes, but only with informed client consent.
- what does the Sarbanes-Oaxley Act require for seucriteis lawyers? CA?
- 1) you must report a security law violation to teh CEO or highest legal counsel of the company. if they don't respond...
2) go to teh board or the highest authority in teh company.
3) if that doesn't work and you reasonably belief you need to prevent fraud or substantial injury to investors or the organization, you may disclose without client consent confidential info to the SEC.
CA specifies permissive, not mandatory reporting to a higher internal authorty and would prohibit outside publication. but preemption would mean CA lawyer would have to comply with sarbanes oxley.
- in noncontingent fee cases, what do CA and the ABA require attorney fee agreements to include?
- 1) how the fee is calculated, what services are covered and the lawyer and client's duties.
(CA requires more: agreements must be in writing unless fee under $1000, emergency, routine for regular client, corp client.
- for contingent fee cases, what do the aba and ca require?
- ABA says:
written fee agreements msut be signed by the client and contain:
1) your percent; and
2) what expenses are to be deducted from recovery; and
3) whether your percent is taken before or after expenses
* CA also requires that agreements state
4) how work not covered by the contingency fee will be paid, and
5) that lawyers's fees are negotiable, not some "standard" percent of recovery.
- which kinds of actions allow contingent fees?
- CA says okay to contingent fee divorces "provided the fee arrangement won't encourage the breakup of an otherwise savable marriage."
ABA: contingent fees may not be used in domestic relations or criminal cases.
- Can a lawyer terminate representation before judgment is awarded?
- if and when client wins, then lawyer can recover in quantum meruit for contingent fees.
- when are fees too high?
- in CA, fees must not be unconscionably high.
ABA says fees must be reasonable, taking into accunt labor, novelty, difficulty, skill and timing required, result obtained, experience of and other demands of attorney, fee arrangement, etc.
if it's functionally a penalty or forfeiture, then its not enforceable.
- fee splitting--is it okay with other lawyers in your firm? outside the firm?
- yes. generally. and you may split fees with lawyers outside your firm only if the division is proportional to the work done by each attorney unless each is jointly responsible for the action.
- what is CA's/ABA's policy on referral fees?
- CA allows referral fees so long as the total fee is not unconscionable and not increased due to the split. ABA prohibits referral fees.
- is fee splitting allowed with non lawyers?
- generally not, but there are exceptions for death benefits for a lawyer's services paid for a reasonable time to the deceased lawyer's firm or heirs and fees shared with non-lawyer employees via pension and compensation plans.
lawyers are also allowed to share court awarded fees with a nonprofit that employed or recommended teh lawyer.
- what is the rule regarding client trust accounts?
- you have a duty to safeguard your client's property by labeling and storing it in a safe place such as an office safe or bank safe deposit box.
money held for client must be placed in a client trust account.
you have a duty to keep good records for your client, to 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 five years after final distribution and to make records available to the State Bar for audits.
- Describe the duty of competence.
- you have a duty of competent service to your client.
competence means using the legal knowledge skill thoroughness and preparation reasonably necessary for the representation.
if you don't know the relevant law, you can't take on a matter unless you can put in the time to learn it without undue expense or delay to your client, or you associate with a lawyer competent in the area.
- distinguish malpractice and duty of competence.
- an injured plaintiff, not the State bar, brings a malpractice action.
it's to get compensation, not for punishment or protection of the public,
it's in a civil court, not to a disciplinary tribunal.
a malpractice plaintiff must prove a legal claim, like breach of contract or tort. an ethical violation may be relevant evidence of malpractice but does not create a presumption of it.
- Describe the other common sense duties to your client
- duty of diligence: you have to duty to diligently, promptly and zealously pursue your case to completion.
duty to communicate: you have a duty to keep your client informed about the case including settlement offers.
- what is the rule regarding accepting representation?
- the general rule is that you are free to accept or to reject any case.
you should accept, as part of your duty a) the case of the defenseless or oppressed "if your only reaosn to refuse is selfish." and (b) a fair share of work without charge. (aba says 50 hours probono is urged).
conversely you must reject a case if it would cause you to violate a law or disciplinary rule to take it.
- what type of decisions is the client supposed to make and what are decisions for the lawyer to make?
- the client makes decisions regarding her substantive rights (whether to testify in a criminal case, accepting plea bargains or settlement offers).
lawyer makes decisions on procedure and legal strategy (choice of motions, what discovery to seek). if you disagree, you can limit the scope of representation.
- what are teh three ways to leave a case before the matter is resolved (what are the duties on withdrawal from representation)?
- 1) the client fires you
2) mandatory withdrawal (you must if continuing would violate a law or ethical rule).
3) permissive withdrawal. you may withdraw from a case if you convince the court there is good cause, or if it's FAIR because your client:
F-Financially burdens you (unlike ABA, CA does not focus on financial burden but allows withdrawal for breach of contract to pay expenses or fees)
A-Acts illegally (ABA also allows withdrawal if your client has used your services to commit a crime or fraud)
I-Insists on pursuing an objective you find repugnant or imprudent, or
R-refuses to fulfill an obligation to you after you warned him you'd withdraw if he didn't comply.
- what are procedures for withdrawal from a case?
- in order to quit you must:
1) provide timely notice to the client, and
2) you also must promptly return (a) any unspent fee and expense advances, and (b) all material papers and property of client.
Include everything needed to pursue the case, even work product, and even if the client has not paid! CA forbids withholding your client's materials for money.
- describe the duty of candor to the public and dignity of the profession regarding advertising and solicitation.
- 1) a state can regulate attorney advertising and solicitation is protected as commercial speech under the 1st Amendment.
2)Advertising must not be false or misleading. CA presumes improper any ad that contains guarantees, warranties or predictions of a result. No testimonials or endoresements may be used unless there is an express disclaimer that they are not GWP.
3) you can't claim you are a certified specialist unless you are certified by CA board of legal specialization or a private org ABA approved or labeled not aba approved.
4) ads must not harass or solicit someone who indicated they wanted to be left alone.
5) ad must be labelled as advertising and you must keep records of ads for 2 years.
- what are the rules regarding solicitation?
- do not seek professional employment for pecuniary gain by initiating a live or telephone contact with a prospective client with whom you have no prior professional, personal, or family relationship.
CA presumes that communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that you should know are not in the physical or mental state to exercise judgment.
runners and cappers (agents) can't do anything a lawyer can't do.
payments (anything of value) for referrals are not allowed except for: (i) fee splitting with other lawyers under CA rules, or (ii) small, ordinary fees paid to authorized lawyer referral services.
- describe the duty of candor to the court and fairness to your adversary
- a lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
duty to present facts and evidence truthfully: you must refuse to make a false statement or offer evidence you know is false or fail to correct a false statement that you previously made to the tribunal.
must not knowingly facilitate client perjury. if civil, you must refuse to call client as witness if you know intent to perjure. CA allows defendant to testify in narratiev fashion but do not further deception. ABA (and majority) says tell the judge. Constitutional right to counsel and duty of confidentiality don't protect perjury.
if you have a reasonable belief but some doubt as to the falsity of testimony, the rule is permissive.
duty to produce evidence: you can't suppress any evidence that you or your client have a legal obligation to produce
duty to state the law truthfully: you have an obligation to be candid about the law, and a duty to cite adverse authority, if its from a controlling jx and directly on point.
duty to uphold the law: don't assist in crimes. prevent your client from causing death or serious bodily injury. you have no duty to reveal a client's fraud or criimes causing subtstantial financial loss.
withdrawal is permissing if you reasonably belief client's course of action is criminal or fradulent.
- describe the general rule of honesty in all dealings.
- a lawyer has a duty to behave hoenstly in all dealings, whether or not engaged in the practice of law.
- What is the duty in communication with adversaries and third parties?
- you must not lie to people or mislead them as to your interests. You must not violate legal rights of a person to obtain evidence or use means with no purpose but to embarass them.
- describe the duty in communication with a party represented by counsel on the subject of your inquiry.
- unless a law specifically authorizes the communication, you must not communicate with a party you know is represented by counsel on the matter without consent of his counsel. (rule does not apply if you don't represent clients in the matter).
- For CA, as opposing counsel can you interview an officer, director or manager of a corporation without counsel's consent?
- no. the prohibition extends to any current employee whose communication might bind or be imputed to the organization or constitute an admission on the part of it.
you don't need consent to interview a line worker and you don't need consent to interview a former employee or unrepresented nonemployees.
- when dealing with the press what must you remember regarding statements?
- you must avoid out of court statements that you reasonably shoudl know have a substantial likelihood of materially prejudicing the case.
exceptions: matters in public record or routine booking info, warning teh public, informing them of ongoing investigation or asking for help, statements requied to protect your client from substantial undue prejudice from recent publicity not self initiated.
- what must prosecutors remember regarding statements to the press?
- prosecutors and their associates must not make comments that have a substantial likelihood of heightening public condemnation of the accused.
- what are the basic and special duties of prosecutors?
- the basic duty of a prosecutor is to seek justice, not just to win cases. Prosecutors have higher ethical obligations than criminal defense or civil attorneys. among other duties, they must:
1) have probable cause
2) protect the accused's rights, including not subpoenaing a lawyer to present evidence about a client unles it is essential and unprivileged; and
3) timely disclose evidence favorable to the defense.
- what are the duties under Preserving the dignity of the court?
- duty to preserve the impartiality and decorum of the tribunal:
1) don't try to influence anybody improperly (jurors mostly)
2) no chicanery (trickery esp by lawyers and politicians)
3) duty to preserve decorum of the tribunal.
Duty to Expedite cases:
1) in ca must not delay cases to harass an adversary. under aba, you have affirmative duty to expedite.
2) you have a duty to follow valid procedural rules or court orders unless you are making a good faith challenge to their validity. you must not abuse or obstruct discovery.
- are you allowed to practice in another state while suspended or not admitted?
- no unless allowed by law, a "pro hac vice" order by the local court or under limited exceptions.
CA created new rules apply to:
1) registered legal services attorneys (practicing under supervision of a CA attorney for no more than 3 years)
2) registered in-house counsel for an institution (but no individual representation or court appearances)
3) ligitation and nonligitating attorneys practicing temporarily in state.
CA's new rules:
require lawyer to register with CA bar, pay dues, satisfy continuing legal ed requirements and be subject to CA ethics rules.
-CA is also less restrictive governing multijx practice allowing temporary practice by lawyer in good standing in another state if lawyer associaties with locally admitted lawyer, services relate to alternative dispute resolution, or the matter arises out of matters reasonably related to the lawyer's practice.
- can you be disciplined for general conduct violating professional standards?
- yes. even when acting in your private capacity when there are no explicit rules you must act to promote public confidence in the integrity and efficiency of the legal system and profession.
- what is your duty regarding reporting misconduct?
- ABA rules require a lawyer to report another's violation of the rules if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer or judge.
CA does not require this, but requires self reporting for lawyers charged with felony or certain crimes, civil liability for fraud, breach of fid duty, discipline in other jxs or sued for malpractice or sanctioned.
- if you are a subordinate attorney and your ethical responsibility is debatable who is responsible?
- the partner is solely responsible if he ratified the action or knew of the conduct and failed to take action. you are subject to discipline if your ethical responsibility is a clear violation.
- What are the issues owed under the duty of confidentiality
- -attorney client privilege
-ethical duty of confidentiality
- what are the issues under the duty of loyalty
- -business transactions or adverse interests
-publication rights contracts
-loans and advances to client
-use of info
-gifts to lawyer/lawyer's family
-conflicts between clients
-new clients related to former clients
-former gov't lawyers
-conflicts due to third party interference
- what are the issues under the fiduciary duty?
- -attorneys fees
-fees too high
-partnerships with nonattorneys
-client trust accounts
- what are the issues under duty of competence and other common sense duties?
- -duty of comeptence
-duty of diligence
-duty to communicate
-scope of representation
-duties on withdrawal from representation
-consensual sexual relationships
- what are the issues under the duty of candor to the public and dignity of profession?
- what are the issues under duty of candor to the court and fairness to your adversary?
- -duty to prsent facts and evidence truthfully
-duty to produce evidence
-duty to state law truthfully
-duty to uphold the law
-deal fairly with others
-dealing with press
-special duties of prosecutors
- what are the issues in preserving the dignity of the court and additional duties?
- -duty to preserve the impartiality and decorum of the tribunal
-duty to expedite cases
-additional duties to the profession and public
- what are the issues under duties of subordinate lawyers?
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