Competence 1. Rep with necessary skill, knowledge, prep, research. 2. If incompetent, must a. Decline/withdraw b. Associate counsel c. Make competent 3. client cant consent to incompetence 4. Exceptions a. Emergency – limited to what necessary 5. Accepting clients a. Relation when give advice/service or fails to decline 6. Scope a. Client decides objectives i. Settle, testify, expenses, pleas, waive rights b. Lawyer decides means to achieve objectives _____________________________________________ Conflict of interest 1. shall not rep client if: a. rep materially limited by i. another client’s interest ii. lawyer’s personal interests iii. third party’s interests b. opposing counsel is family member i. Exceptions 1. client consent in writing 2. Clients interests a. Present i. Actual: Interests directly adverse to current client ii. Potential: can rep if 1. lawyer reasonably believes 2. no adverse effect on rep 3. disclosure and if actual a. disclose b. new consent c. withdraw if not reasonable 4. All consent in writing b. Joint i. Can rep multiple parties if same interests provided that 1. reasonably believes 2. no adverse affect 3. disclose pot conflict, if actual a. disclose b. advise one/both to get sep counsel c. withdraw/re p one ii. all consent in writing/reasonable
Professional Responsibility Conflict Cont’d 1. Former a. Not rep a client in same/substantially related matter if acquired conf info from former client material to new client b. Exceptions i. Former client consent (CA-written) ii. Screened off iii. Full disclose iv. No share fee v. No conf disclose vi. Govt-notice c. Conflicts can be waived 2. Imputed disqualification a. If one, then whole firm b. New lawyer in firm i. Same/stly related to matter/conf info c. Lawyer leaves firm i. Can rep unless substantially related/have conf info d. Exceptions i. Client waiver ii. Family iii. Screened iv. Govt-notice to agency 3. Former Govt lawyers a. Cant rep where personally/substantially participated in while govt b. Matter: parties, facts not leg c. Applies to clerk, judge, arbitrator d. Exceptions i. Govt consent, don’t use conf ii. Judge-all agree 4. Personal Interests a. Avoid where affect prof judgment b. No sex with client i. (CA-OK) if ii. Not condition iii. No undue infl iv. Not payment v. Not mat/adverse c. No bus transactions unless i. Fair/full disclose, consent, indep counsel ___________________________________ Candid advice 1. must give candid advice
Confidentiality don’t reveal info relating to rep foster open communication regardless if client requested continues after termination Exceptions a. May reveal to extent necessary: i. Client consent ii. Future crime iii. Rectify fraud used lawyer 1. refusenoisy withdra wal (no- ca) 2. commit perjury 3. defense to client iv. CA 1. defense mal suit/assi st counsel 2. collect fees 3. court order _______________________________ Attorney-Client Privilege 1. confidentiality privilege is broader 2. DOC: all info, comm. or observe from whatever source 3. ACP: only comm. during relations from client a. Relating to legal services b. Or through agents c. Only confidential comm.. 4. Corp client: only to high ranking officials or employee if: a. Subject within scope of job b. Knows assist company c. At direction of superior 5. Exceptions a. Breach duty to client b. Litigation between clients c. Will disputes _______________________________ Communication 1. keep client informed/ explain all matters 2. inform of settlement offers 3. Exceptions a. Incompetent/child b. Delay info cause react imprudent 1. 2. 3. 4. 5.
Conflict – Personal interests cont’d 5. No financial assistance – except costs/expenses a. Ca-OK: if IOU, not for gain business) b. Put in agreement 6. No solicitation of gifts a. Unless relative/simple gift b. (CA-OK – no inducing) 7. No limiting malpractice liability unless a. Client consent in writing b. Get indep counsel/time to see them c. CA-never 8. No interest in litigation a. Except: contingency client,lien 9. No literary/media rights unless concluded a. Substantially related to rep b. (CA-OK-if consent by client). 10. no testifying in same case unless a. unconstested matter b. legal services c. withdrawal cause hardship d. Ca-client consents in writing 11. Third Party interests a. Duty is only to client b. Payment from other ok if i. Client consent in writing ii. No interference iii. Conf info reserved c. Organization i. Duty to organization ii. If seek legal advice-relation iii. May rep if no conflict _____________________________________________ Duty to court 1. Candor: no fraud/dishonesty 2. State law truthfully 3. not knowingly offer false evidence 4. If client going to commit perjury a. Ask them to be truthful b. Dissuade from testifying c. If refuse, must withdraw Ca-permissive) d. If cant withdraw, disclose to court in chambers i. No protection from stmts ii. CA-don’t disclose, narrative 5. No frivolous claims/defenses: good faith argument 6. Impartiality a. No ex parte with judge b. No communicate with jurors before/during trial c. No harass juror _____________________________________________ Duty to profession 1. maintain integrity 2. Misconduct a. Violation/assisting other 3. Reporting a. Must report knowledge of misconduct b. Ca-duty to self report i. Sued 3x in one year ii. Civil liabile for fraud iii. Sanction over 1k iv. Charged with felony
Safeguard property 1. keep client’s property separate 2. provide accounting if requested 3. give receipt to client for property 4. promptly transfer undisputed funds _________________________________ Terminate representation properly 1. Mandatory a. Violate rule/law b. Incompetent c. Discharged d. Mental/physical inability e. Frivolous action 2. Permissive: may withdraw a. Lawyer testify in case b. No mat adverse effect c. Client – crime/fraud i. CA-not crime d. Financial burden e. Repugnant objective f. Doesn’t pay fees 3. Procedure a. Reasonable notice b. Give time c. Return all property _________________________________ No unreasonable fees 1. factors: amount, sophistication, difficulty, other jobs, time, nature, experience, labor, consent 2. Must disclose fees before rep 3. Ca-written over 1k 4. Disputes – arbitration (Ca-if client wants) 5. Contigency a. Writing/signed b. Calculation/percentage c. Prohbitied when i. Crim/domestic ii. Ca-divorce ok iii. Domes-collect 6. Referral fees a. Generally not allowed b. Legal service fees ok c. CA-ok if i. Client consent ii. Not unconscionable iii. Not increased 7. Fee splitting a. Non lawyers-never i. Except: wages b. Lawyers: ok if i. Full disclosure ii. Client consent (ca-writing) iii. Proportion to services iv. Reasonable fee
Dilligence act with reasonable diligence/promptness 2. question if rep – put in writing 3. no fraud/dishonesty 4. use skill-common 5. Zealous advocacy – do everything legally and ethically necessary 6. no delay _______________________________ Duty to opposing counsel 1. fairnesss – Don’t a. don’t conceal, falsify evidence b. threaten charges c. pay witnesses d. disobey order e. abuse discovery f. personal opinion 2. communication a. don’t communication with rep person b. not with organization high officials c. don’t imply disinterested 3. prosecutors a. have PC b. protects accused rights c. disclose evidence d. no waiver unless counsel present e. statements public condem 4. trial publicity a. no stmt materially prejudicing case b. Except: public record, id parties, claims 5. witness a. not witness unless i. undue hardship ii. uncontested iii. legal svcs 1.
Duty to profession Cont’d Unauthorized practice of law a. must not assist other with practice b. can delegate duties 5. fee splitting with non-lawyers 6. partnership with non-lawyers a. if any activity is practice of law b. no right to control judgment 7. restrictions on right to practice a. except: sale of practice/retirement 8. Public Service activities a. Pro bono: should help b. Appointments: must accept except for good cause c. Legal organ: can participate unless incompatable with obligation to client d. Law reform: can participate but no conflict of interest – material affect _____________________________________________ Duty to lawyers in firm 1. Supervisor/partner: take reasonable effort to conform 2. Responsible if: a. Order, ratifies, or fails to take remedial measures b. CA-liable if i. Assist other commit crime ii. Others liable if knew/approved 3. Others liable if knew violation-not arguable question _____________________________________________ Communication re services 1. Advertising – not false/misleading a. Unjustified expectation b. Invalid comparison c. Imply results d. CA – rebuttable presumption - false i. Endorsement without disclaimer ii. Not clear ads iii. Physical/mental stress client iv. In hospital e. Label ad 2. Solicitation a. No in-person, live, phone, real-time communication if i. For pecuniary gain ii. Expressed no desire to contact iii. Coercive b. Exceptions i. Personal, family, prior client ii. Group/prepaid service 1. not know need services 2. doesn’t direct organ 3. contact groups c. direct mail is ok _____________________________________________ Judges 1. uphold integrity and impartiality 2. no influences 3. disqualify if: bias, former firm, interest, family 4.