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4 most common duties owed to clients
- "The lawyer has a duty of ____ to ____"
- Confidentiality
- Loyalty
- Financial Responsibility
- Competence
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3 most common duties owed to parties other than a client
- Candor
- Fairness
- Dignity/Decorum
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Steps for building a PR essay
- Clients Love Fierce Counsel; Courts Feel Differently
- Owed to client: Confidentiality, Loyalty, Financial Responsibility, Competence
- Owed to others: Candor, Fairness, Dignity/Decorum
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Duty of Confidentiality to Client
- Don't reveal anything related to the representation of a client or use that information against her w/out her consent
- Scope: Broader than A-C privilege; may attache regardless of whether client sought confidentiality
- Responsibility: use reasonable electronic security to prevent inadvertent access
- Note: be skeptical of disclaimer
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Longevity of Duty of Confidentiality
Continues after formal representation ends and after death
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Exceptions to Duty of Confidentiality
- Consent: can be implied if necessary to render your client services
- Defending yourself: information necessary to establish your claim or defense
- Compelled by court, law or other ethical Duty
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Exception to Duty of Confidentiality - Defending yourself
- May release information necessary to establish your claim or defense during:
- sued for malpractice
- disciplinary actions against you
- client refuses to pay and you are forced to sue for fees
- Under ABA: seeking ethics opinion
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Circumstances for when/how can you disclose confidential information to uphold the law - death or bodily harm
- Death or bodily harm: attorney may disclose to prevent
- - must make a good faith effort to dissuade client
- - if reasonable, inform client of your decision to reveal confidences (in CA)
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Circumstances for when/how can you disclose confidential information to uphold the law - fraud or crimes causing financial injury
- Attorney may reveal confidences if client used or is using your services and disclosure would prevent or mitigate substantial financial loss
- - must make a good faith effort to dissuade client
- - * NO Financial crime DISCLOSURE IN CA
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Definition of Imputed Disqualification & exceptions
- Any group of lawyers that work together closely or share responsibilities share each others' conflicts
- Exceptions:
- May confine conflict behind "ethical wall" if based on attorney's prior work at another firm or w/ Gov.
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CA difference w/ respect to imputed conflicts
- CA does not impute purely personal conflicts to colleagues
- CA disqualifies, but does not discipline, a lawyer for imputed conflicts
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Definition: concurrent conflict of interest
when there is a significant risk that the representation will be materially limited by the conflict
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When may a lawyer undertake representation despite conflicts of interest?
- Reasonably believes can reasonably/diligently represent clients despite conflict
- each affected client gives informed consent
- CA Rule is different:
- does not contain "reasonably lawyer standard"
- applies to potential and concurrent conflicts
- requires "informed written consent"
- but requires only written disclosure to client when arising from prior representations
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Three situations where lawyer may accept fees from 3rd parties
- client gives informed consent
- no interference with lawyer's independence or with attorney-client relationship
- Information relating to representation remains confidential
- CA: requires consent be in writing
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CA requirement for fee agreements (and 5 exceptions)
- Over $1K required to be in writing
- Exceptions:
- client is corporation
- client states in writing does not want
- same kind of services client has previously paid for
- Acting in emergency
- Otherwise impracticable
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Competency in representation ABA v. CA
- ABA: must act with the knowledge and skill to carry out the representation
- ABA: Can be punished upon first failure
- CA: Only punished if "intentionally, recklessly, or repeatedly" fails to perform with competence
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