What duties can be owed to each client?
- Financial Responsibility
- (CLFC) Clients Love Fierce Counsel
Duties to entities other than your clients?
- Candor/Truthfulness -> Court
- Fairness -> Adversaries (parties & their counsel)
- Dignity/Decorum -> legal profession
- other reasonable things -> third parties/public at large
- (CFD) Courts Feel Differently
Duty of Loyalty
- A lawyer owes her client a duty of loyalty, and must exercise her professional judgment solely for the benefit of her client, free of compromising influences and loyalties.
- A lawyer must act to protect the interests of its client [in the best interests of the client]
concurrent conflict of interest exists when?
- 1) representation of the client will be directly adverse to the interest of another client; or
- 2) there is a significant risk that the representation of one client will be materially limited the lawyer's personal interest or the interests of another client.
When an actual conflict of interest arises, what must the attorney do?
must withdraw from representing ALL conflicted clients, since she will have confidential info from each client that she cannot use against any of them if she continues to represent one and not the others
If there is a concurrent conflict of interest, a lawyer may still undertake representation when?
- ABA Rules:
- 1) lawyer reasonably believes he can competently and diligently represent each client
- 2) representation is not prohibited by law
- 3) representation does not involve the claim of one client against another client who is represented by the same lawyer
- 4) each client gives informed, written consent.
- CA rules: differ in 3 ways!
- a) no "reasonable lawyer" standard, as long as lawyer believes
- b) applies to potential as well as actual concurrent conflicts
- c) requirse written disclosure, not informed written consent.
When can a lawyer accept compensation from a third party?
- 1) client gives informed consent
- 2) no interference with professional judgment or the lawyer-client relationship
- 3) info regarding the representation is kept confidential
- 4) (CA, consent must be in writing)
- Traditionally, professional ethics rules banned lawyer advertising.
- However, lawyer advertising is now recognized as commercial speech protected by the First Amendment.
- The SCOTUS has held that a state may not flatly prohibit lawyer advertising unless it is false or misleading.
Financial assistance to a client?
- ABA: a lawyer is subject to discipline for rendering financial assistance to a client in the context of contemplated or pending litigation. However, a lawyer may provide court costs and litigation expenses, as long as the client remains ultimately liable.
- CA: A lawyer is forbidden from paying the personal or business expenses of a client. However, a lawyer may lend money to the client for any purpose, if the client promises in writing to repay the lawyer. A lawyer is also permitted to lend the client money to cover the reasonable expenses of litigation.
Mailings to prospective clients
- Lawyer must not seek fee-paying work by initiating a personal or live telephone contact
- But a lawyer may send truthful, nondeceptive letters to persons known to face a specific legal problem.
- If the lawyer has actual knowledge that a person who received a letter did not wish to communicate with the firm, then the lawyer is subject to discipline.
- Mailings that seek fee-paying work must be clearly labeled as advertisements
- ABA Model rules require that all written communications with prospective clients include the words "Advertising Materials."
- The phrase must appear on the outside of the envelope and on the first page of the communication.
- A lawyer may not seek fee paying work by initiating contact with a prospective client who:
- 1) is not a lawyer, and
- 2) has no personal, family, or prior professional relationship with the lawyer.
- Violation of these rules is an unlawful solicitation.
Duty of Confidentiality
- Rule: A lawyer must not reveal anything related to the representation of his client.
- Rationale: maximize trust and therefore candor, allowing the adversarial system to work
- Scope: The duty of confidentiality applies regardless of whether the client requested it be kept confidential or whether its revelation might harm or embarrass the client.
Exception to duty of confidentiality?
- ABA: 2 exceptions, an attorney MAY disclose a . . .
- 1. future crime likely to cause imminent death or substantial bodily harm
- 2. future crime/fraud to prevent or rectify substantial financial loss
- CA: 1 exception, an attorney MAY disclose a . . .
- 1. criminal act that the lawyer reasonably believes is likely to cause death or substantial bodily injury
Attorney-client privilege, discuss when?
Discuss it whenever you discuss any exception to the duty of confidentiality!
What is attorney-client privilege?
- exclusionary rule of evidence law. Prohibits a court from compelling the attorney to reveal confidential communications between attorney and client.
- in contrast, duty of confidentiality prohibits attorney from voluntarily revealing information relating to the representation of a client.
Exception to attorney-client privilege?
- ABA and CEC: ac privilege does not apply if:
- 1. client seeks attorney's services to enable a future crime or fraud.
- 2. (under CA law) attorney reasonably believes that disclosure is necessary to prevent client from committing a crime resulting in death or substantial bodily injury.
ABA: If attorney learns that client has used her services to financially injure a 3rd party, what must she do?
- 1. lawyer MUST withdraw from representing the client in any future work
- 2. lawyer MAY reveal confidential info to prevent the injury or rectify or mitigate it
- 3. lawyer MUST reveal if it is the only way the lawyer can avoid assisting the client's crime or fraud.
- 4. laywer MAY make a noisy withdrawal, inform the people defrauded that she is withdrawing and no longer stands behind the financial matters she helped prepare.
CA: If attorney learns that client has used her services to financially injure a 3rd party, what must she do?
- 1. CA does not permit disclsoure, nor does it permit noisy withdrawal
- 2. CA, lawyer should 1) urge client to rectify the fraud, 2) withdraw if client refuses.
- An attorney owes a duty of fairness to the court and opposing counsel.
- A lawyer must not unlawfully alter, destroy, or conceal evidence.
- Further, it is a crime to destroy or conceal evidence.
- ABA: If a lawyer knows her client will testify falsely, she must
- 1. try to persuade client not to testify falsely
- 2. if that fails, the lawyer should seek to withdraw
- 3. if withdrawal will not remedy the situation, the lawyer should disclose the matter to the court
- CA: If a lawyer knows her client will testify falsely, she must
- 1. try to persaude client not to testify falsely
- 2. if that fails, lawyer may (NOT MUST) seek court's permission to withdraw
- 3. if court refuses withdrawl, lawyer MUST proceed
- 4. lawyer may permit client to testify in narrative fashion
- 1. Attorney has a duty of fairness to opposing party and counsel.
- 2. Attorney has a duty to turn over incriminating evidence (given to him by his client) to the proper authorities.
- 3. Attorney has a duty not to suppress evidence
- 4. (But, Attorney also has a duty of confidentiality to his client!)
- 5. To balance both duties, attorney should turn over the evidence without disclosing its source (how he came into possession of it).
Closing arguments, what duties?
Duty of candor to the court
Attorney-client relationship forms when?
Forms when the person meets in an individual capacity with the attorney, and seeks legal advice.
Duty of loyalty is stifled by new knowledge of some harm?
Can an attorney "quit"?
- Attorney has a duty of diligence to act with reasonable diligence and promptness on behalf of a client.
- Attorney has a duty to see the matter through to completion
- Attorney has a duty not make a fee agreement that could result in curtailing services in the middle of the relationship and place the client at a bargaining disadvantage
If an attorney is permitted to withdraw, when can he actually do it?
- Attorney may withdraw from representing a client, if it can be done without material harm to the client.
- (part of the duty of diligence)
Attorney getting put into client's will or divorce settlement?
- An attorney must not have a proprietary interest in the cause of action or subject matter of the litigation.
- However, a lawyer may contract with the client for a reasonable contingency fee in a civil case.
When are contingency fees prohibited?
- ABA: prohibited in 2 types of cases
- 1) domestic relations
- 2) criminal cases
- CA: only if agreement encourages the breakup of a marriage
- (if H & W already engaged in divorce proceedings, attorney can take contingency fee)
Attorney's duties upon withdrawal?
- 1. Give timely notice of withdrawal
- 2. Return all papers and property (and unused fees) to client.
- 3. Attorney cannot withhold client's file to compel client to pay outstanding fees.
Contracting to limit malpractice liability?
- An attorney cannot attempt to avoid or limit malpractice liabilty to a client. (subject to discipline)
- Any such agreement is void as against public policy.
Contract to settle malpractice claims?
- A lawyer must not settle a malpractice claim with an unrepresented client unless he:
- 1) advises that client
- 2) in writing
- 3) to seek advice from an independent lawyer about the settlement