Professional Responsibility 1 What Body of Law to Apply Use CA law and strengthen your answer by flagging conflicts with the ABA model rules. The Law has a duty of _____(fill in duty) ___ _ to ____(fill in person or thing)___ Confidentiality Loyalty Fiduciary Responsibilities Competence Candor/Truthfulness Fairness Dignity/Decorum > > > > > > >
Clients
Court, Tribunal, Adversaries, Profession 3rd Parties, Public
Duty of Confidentiality General Rule: you can’t reveal anything related to the representation of a client without her consent. Attorney Client Privilege (evidentiary privilege): distinguish o Scope: A/C Privilege covers only communications pertaining to legal services, not other subjects like business tactics or political consequences. Duty of Confidentiality is Boarder, and includes disclosures that could reasonably lead to discovery of confidential information by a third party. o Source of Information A/C Privilege shields only information obtained from the client or her agents. Duty of Confidentiality: the source of the information does not matter. o Timing A/C Privilege protects communications leading up toa a formal A/C relationship and continues after death. CAL: Terminates A/C when the client’s estate is settled.*** Duty of Confidentiality continues Indefinitely Exceptions o Consent: if client consents after consultation, a lawyer may reveal otherwise confidential information. o Crimes Fraud or Financial Crimes: Attorney may reveal client’s intentions to commit a future financial crimes or Fraud, IF he is using your legal services to commit the crime. CAL: NO EXCEPTION to confidentiality for financial crimes/fraud. Death or Substantial Bodily Harm: Attorney may reveal only what is necessary to prevent the act, if he reasonably believes disclosure is necessary to prevent reasonably certain death or GBH. CAL: must first make a Good Faith Effort to persuade client not to commit the act, if it is reasonable to do so. Then you can disclose. (before, there was no exception) o Defending Yourself: Attorney can reveal information necessary to establish a claim or defense for himself. o Judge Orders: if compelled by law, other controlling ethical duties, or final court order, the attorney must disclose.
Professional Responsibility 2 Duty of Loyalty: Conflicts of Interest*** Rule: you have a duty of loyalty to your client. If an interest of you, another client, or a third party limits or is directly adverse to loyal representation, you have a potential or an actual conflict of interest. o Approach: You must not take on the representation unless: You can represent everyone effectively You inform each affected client. If the duty of confidentiality prevent attorney from fully disclosing information the client needs to understand the conflict, thEn consent may not be possible. Client must consent in writing. The consent must be reasonable, if a reasonable attorney would not advise the client to consent, the consent is invalid. o Imputed Disqualification: lawyer and all the members of his firm are treated as a unit for the purposes of conflicts. CAL: follows rules for imputed disqualification, but does not subject a lawyer to discipline for imputed conflicts under its ethical rules. Exceptions to Imputed DQ: (1) conflicts from government service, (2) conflict purely personal relationship. An Ethical Wall may make representation reasonable. Conflicts Between Lawyer and Client o Interest in Subject of Litigation: A lawyer should not have a personal financial interest in the outcome of the litigation. Exception: (1) attorney’s lien on property to secure payment of fees, (2) work on a contingent fee basis (OJs lawyers put a lien on his house) o Business Transactions or Adverse Interests: Lawyer may enter into business with a client or obtain an interest adverse to clients if (1) the terms are fair to the client; (2) transaction is fully disclosed in understandable writing, (3) client has an opportunity to consult and outside lawyer, and (4) client provides written consent. No automatic bar to serving on Board of Directors of a corporate client, thought it is strongly discouraged because it compromises duties of loyalty & confidentiality Can serve as a director, officer or member of a legal services organization. o Publication Rights Contracts: Lawyer cannot receive publication rights to client’s story until the representation has ended. CAL: discourages but tolerates contracts before the end of proceedings, but if judge is satisfied and client clearly consents, it is ok. o Loans & Advances to Client: Cannot financially assist client with litigation, EXCEPT FOR costs and litigation expenses when representing Indigents. Advances are ok if the client promises to pay them back. CAL: prohibits the promise of paying a client’s debts to pay his business, but allows all loans in all other matters (including non-litigation) for any purpose after the lawyer is hired if there is a Written IOU. o Limiting Liability: lawyer cannot limit client’s right to report him for ethics violations, and cannot limit malpractice liability (unless he is independently represented. If settle a malpractice claim, must advice client to consult an outside lawyer first. o Use of Information: using information relating to the representation of a client to her disadvantage and without consent violates Duty of Confidentiality & Loyalty. o Gifts to Lawyer (or Lawyer’s Family): lawyer cannot solicit a substantial gift or draft a legal instrument for a client that provides a substantial gift to lawyer or a relative. CAL: extends this rule to any intimate relationship (i.e. lawyer, girlfriend, etc.) o Close Relationships with Lawyer for Other Side: you can’t oppose a party represented by a immediate family WITHOUT informed client consent.
Professional Responsibility 3 CAL: extends this rule to any intimate relationship (i.e. lawyer, girlfriend, etc.) Note: no imputed disqualification for this conflict o Trial Counsel as a Necessary Witness: General Rule= can’t serve as counsel and witness in the same trial UNLESS testimony is for the value of services, or if withdrawal would impose a substantial hardship on the client. CAL: allows testimony if it is to anyone but a Jury, or if the client consents in writing (jury would have a hard time seeing lawyer wearing two hats, judge wont) Note: no imputed disqualification for this conflict Conflicts Between Clients o Generally, you may represent your clients with POTENTIAL CONFLICTS with the proper consent of all, but it is almost never proper if their interests are in ACTUAL CONFLICT. o Opposite Sides of the Same Matter: it is unreasonable to represent opposite sudes of the same matter and violates the duty of loyalty. CAL: it is never reasonable to assert a claim by one client against another client in the same case. o Opposing Present Client’s Interests: Consent of parties opposed to each other is rarely reasonable. CAL: it is Never reasonable (Exception= policyholder and his insurance company as joint clients.) o Two Clients with Inconsistent Positions: must have consent, but if either would be disadvantaged, you must withdraw. o Multiple Clients in the Same Matter: allowed if there is a POTENTIAL CONFLICT only. If there is an actual conflict, must withdraw and advise them to get separate counsel. Examples: (1) insured and insurance company; (2) Both Spouses in a divorce or Will; (3) Corporation and its Directors, Officers, etc. Criminal Matters: may impede 6 th Amendment right to effective assistance… o New Clients in Matters Related to Former Clients: if confidential information might be relevant, you would be violating your duty of confidentiality and loyalty. Lawyer cannot take on a new client with interests materially adverse to a former client without the former client’s consent. Use of Nonpublic, confidential information against a former client is unreasonable. Imputed DQ: If lawyer left the firm, the firm can now represent a client against the lawyer’s former client if (1) the matters are not substantially related or the same; & (2) any remaining lawyer does not have confidential material information. o Former Govt. Lawyer Now In Private Practice: if the government lawyer worked personally & substantially on a matter, then it would be a conflict to work on the same “matter” later in private practice. (regulations are not a matter, matter= specific dispute) Imputed DQ is overcome if: (1) Screening; (2) do not share in fee; (3) government employer is informed. Conflicts due to Third Party Interference o General Rule: Your sole duty is to your client, not to any 3 rd Party. o Compensation for services from a 3 rd party is permitted only with informed client consent o Organizational Clients: A lawyer must act in the best interest of the ENTITY. Must report matter to CEO or Chief Legal Counsel, then go to Board, then SEC CAL: permissive reporting to a higher internal authority only.
Professional Responsibility 4 Fiduciary Duty to Your Client Attorney Fees o Fee agreements must be reached early and clearly; should include how the fee is calculated, what services are covered, and the lawyer and client’s duties. CAL: fee agreements must be in writing. o Contingent Fee Agreements: must state (1) Lawyer’s %; (2) Expenses to be deduced from recovery; (3) where % is taken before or after expenses CAL: (4) how work not covered by contingency fee will be paid; (5) that lawyer’s fees are negotiable. Contingent fees may not be used in Criminal Cases or Domestic Relations CAL: allows contingent fee divorces (as long as the arrangement won’t encourage the breakup of an otherwise savable marriage. o FEES MUST BE REASONABLE CAL: FEES MUST NOT BE UNCONSCIONABLY HIGH o Fee Splitting Allowed to split with other lawyers from firm. Allowed to split fees with lawyers outside firm IF (1) total fee meets ethical standards; (2) written disclosure and consent; (3) division is proportional CAL: does not require proportionality With Non-lawyers= generally not allowed. Exceptions: death benefits, pension and compensation plans, non profitorganizations o Referral Fees ABA= NOT ALLOWED CAL= allows them so long as the total fee is not unconscionable and not increased due to the split. Consent is required. Client Trust Accounts o 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. o Money held for a client must be held in a CLIENT TRUST ACCOUNT o No commingling or borrowing funds from client account. Competence & Other Common Sense Duties to Your Client Duty of Competence o You have a duty to render competent service to your client. o Competence= using legal knowledge, skill, thoroughness, & preparation reasonably necessary for the representation. if you don’t know the relevant law, you can’t take on a matter unless u can put in time to learn it without undue expense or delay. Accepting Representation o General Rule: you are free to accept or reject any case. o MUST ACCEPT: 50 Hours Pro Bon work a year o MUST REJECT: if it would violate a law or disciplinary rule to take it Scope of Representation o Client makes decisions about her Substantive Rights o Lawyer makes decisions on Procedure & Legal Strategy Duty to Communicate o Lawyer has a duty to keep his client informed about the case, including settlement offers. o Lawyer must return client’s phone calls.
Professional Responsibility 5 Duty of Diligence o Lawyer has a duty to diligently, promptly, and zealously pursue the case to completion. Duties on Withdrawal from Representation o (1) Client Fires you o (2) Mandatory Withdrawal: must withdraw if continuing would violate a law or ethical rule. (i.e. Knowingly pursuing a frivolous claim.) o (3) Permissive Withdrawal: may withdraw from a case if you convince the court there is good cause, or if it’s fair. (i) financially burdens lawyer; (ii) client acts illegally or uses lawyer’s services to commit a past crime or fraud; (iii) client insists on pursuing an objective you find “repugnant” or “imprudent”, (iv) client refuses to fulfill an obligation to you after you warned him you’d withdraw. o (4) Procedures for Withdrawal: must give timely notice to client and return unspent fee & material papers & property. CAL: forbids withholding your clients’ materials for your money.
Duties of Candor to the Public & Dignity of the Profession: Advertising & Solicitation Advertising may breach the duty of candor to the public, but also the duty to preserve the dignity of the profession. RULE: A state can regulate attorney advertising and solicitation subject to the lawyer’s Constitutional Right to Free Speech. Advertising o Advertising may not be false or misleading Do not mislead or omit material information. CAL: presumes improper any ad that contains Guarantees, Warranties, or Predictions of a Result. o Claims of Legal Specialties: cannot advertise a Specialization UNLESS you are a “Certified Specialist” o Advertisement must not harass or solicit someone who has indicated that she wants to be left alone. o **Every Ad must be labeled as advertising material. Solicitation o = live contact; initiated by lawyer or his agent. o RULE: Cannot seek professional employment for pecuniary gain by initiating a live, telephone, or real-time electronic contact with a prospective client. o CAL: presumes communications made at scene of an accident are improper Payments For Referrals = not allowed. o EXCPETIONS: (1) fee splitting allowed; (2) small fees paid to authorized lawyer referral services. Duty of Candor to the Court & Fairness to Your Adversary A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, misrepresentation, etc. Duty to Present Facts & Evidence Truthfully o Cannot offer evidence you know is false o Must correct a false statement of material fact or law that you previously made or presented to a court. o Client Perjury: you must not knowingly facilitate client perjury CIVIL: you must refuse to call the client as a witness if u know he will perjure himself.
Professional Responsibility 6 CRIMINAL: (∆ has a 5th Amendment right to testify on his own behalf & a 6 th Amendment Right to effective assistance of counsel). What Do you Do? TAKE REASAONBLE REMEDIAL MEASURES o (1) Counsel ∆ to testify truthfully or Not to take the stand o (2) Try to Withdraw from the Case o (3) Tell the Judge o CAL: allow the ∆ to testify in a narrative fashion, but do not further the deception. If Not the ∆, refuse to put witness on the stand. Duty to Produce Evidence o Lawyer must not suppress evidence that he or his client has a legal obligation to produce, regardless of the duty of loyalty. o Cannot obstruct access to or tamper with Fruits or Instrumentalities of a crime. o Cannot Obstruct another parties to evidence, or counsel anyone to do so. o Client brings you a Gun or Drugs- You are required to turn it over, but you are not required to reveal confidential communication. o MUST DRAW A LINE BETWEEN PHYSICAL EVIDNECE & CONFIDENTIAL INFORMATION o Interference with Evidence If client tells you where the gun is, and you touch it, take, it, interfere with it, you MUST (1) give it to police, (2) testify where you found it. BUT, you MUST NOT (1) reveal the source of information about its location. A lawyer may retain evidence for a reasonable time to prepare his client’s case, to conduct tests so long as they will not alter or destroy the evidence. Duty to State the Law Truthfully o Lawyer has an obligation to be candid about the law, and duty to CITE ADVERSE AUTHORITY, if it’s from a controlling jurisdiction & on point. Duty to Uphold the Law o Duty to prevent client from causing Death or Serious bodily injury. o ABA & CAL say disclosure of confidential information is Permissive. o If continued representation would require you to commit or assist in committing a crime, you MUST withdraw. o If your client persists in a course of action that you reasonably believe is criminal or fraudulent, but you are not assisting in a crime, you MAY withdraw
Additional Duties of Fairness General Rule: Lawyer has a duty to behave honestly at all times in all dealings, whether or not engaged in the practice of law. Dealing Fairly with Others o (1) Cannot make false statements of fact or mislead them as to your interests o (2) Cannot communicate with a party you know is represented by counsel without consent of his counsel. For a Corporation, you need the consent of anyone who supervises or regularly consults with the organization’s lawyer, who has authority to obligate the organization or whose conduct may be imputed to the organization. (do not need consent to interview a line worker who no longer works for the company. Dealing with the Press
Professional Responsibility 7 o Lawyer must avoid out-of-court statements that he reasonably knows would have a substantially likelihood of materially prejudicing the case. (Exceptions for matters of public record and for recent publicity not self-initiated.) Special Duties of Prosecutors o Prosecutors’ basic duty is to seek justice, not just to win cases. Prosecutors have a higher ethical obligation than other lawyers. o They must (1) have probable cause; (2) protect accused’s right to counsel; (3) Timely disclose evidence
Preserving the Dignity of the Court & Additional Duties Duty to Preserve the Impartiality and Decorum of the Tribunal o Jurors: Cannot try to influence Jurors; do not talk to them before or during the trial. You can interview them afterwards as long as you don’t harass them. o Conduct: refrain from abusive conduct, belligerence, or theatrics. Duty to Expedite Cases o You have an affirmative duty to expedite cases. o CAL: lawyers must not delay cases to harass an adversary, or for their own personal gain or convenience. o Duty to follow valid procedural rules or court orders, unless you are making a good faith challenge to their validity. Additional Duties to the Profession and Public o A lawyer must not engage in the unauthorized practice of law (while suspended or in a state not admitted) Multi-jurisdictional Practice: allows temporary practice by a lawyer in good standing in another state, if granted by the court. (aka PRO HAC VICE) Duties of Subordinate Lawyers Subordinate= under the control or supervision of another attorney (i.e senior partner). o If clear violation: you are subject to discipline o If it is a debatable problem: partner is solely responsible. o If supervising partner ratified the action or knew of the conduct and failed to take action, it is a violation. Managing Partners: must make reasonable effort to ensure that everyone’s conduct in a firm, including non-lawyer assistants, comports with the professional obligations of a lawyer. Inaction: CAL: you can be disciplined for merely knowing about a fellow firm member’s disciplinary violation and doing nothing to prevent it.