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Duty of Confidentiality
- You cannot reveal anything related to the representation of a client, w/o his consent.
- This does not require attorney-client relationship.
- Exceptions:
- 1) CONSENT
- 2) DEFENDING SELF
- 3) PREVENT DEATH OR SUBSTANTIAL BODILY HARM (CA - Req's first if rsn'ble, making Good Faith effort to persuade him against act and inform him of your decision to reveal)
- 4) PREVENT FUTURE FRAUD OR FINANCIAL CRIMES
- (CA - NO Financial Exception)
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Conflict of Interest
- There is a Conflict of Interest if: an interest of yours, another client, or third party materially limits or is adverse to your duty of loyalty to your client.
- CA allows case-by-case screening to overcome conflicts.
- You are responsible for conflicts that your are ignorant of
- EXCEPT for short term legal services where you are only responsible if you have actual knowledge of conflict.
- You must not take on representation UNLESS:
- 1) You objectively, reasonably believe you can represent everyone effectively,
- 2) You inform each client, AND
- 3) Client consents, confirmed in writing.
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Imputed Disqualification
- You and all members of your firm share conflicts.
- EXCEPTIONS:
- 1) Former and current gov't lawyers,
- 2) Personal interest,
- 3) Close family relationship with Client,
- 4) Sexual relationship, AND
- 5) Prior association with law firm and the lawyer is timely screened.
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Business with Clients
- Entering into business with a client OR obtaining an interest adverse to client's allowed under conditions:
- 1) Terms are fair to Client,
- 2) Fully disclosed in understandable writing,
- 3) Client has an opportunity to consult an outside lawyer, AND
- 4) Client provides written consent.
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Remedies for Conflicts of Interest
- Depending on circumstances, you may:
- 1) Refuse to take case,
- 2) Advise multiple clients to get seperate counsel, OR
- 3) Withdraw.
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Payment to Attorney in Stock
Allowed if it is fair and reasonable under the cirumstances known to the lawyer, when the interest was acquired.
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Board Services
- A lawyer may serve on the Board of Directors of a corporate client, but strongly discouraged because it may compromise duties of loyalty and confidentiality.
- Allowed for non-profit legal services organization.
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Limiting Liability
- You cannot limit your client's right to report you for:
- 1) Ethical or professional violations, OR
- 2) Malpractice liability UNLESS client had independant counsel.
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Publication Rights Contracts
- ABA: You may not buy rights to Client's story before representation has ended.
- CA: You may K with Client IF judge is satisfied that the client clearly understands and consents
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Loans and Advances to Client
- ABA: No financial assistance allowed, EXCEPT for:
- 1) Costs and litigation expenses when representding an indigent, OR
- 2) The advance of litigation expenses in contingent fee cases.
- CA: Above rules also apply to non-litigation contexts; No paying prospective Client's debts, but loans allowed IF:
- 1) Lawyer is hired, AND
- 2) There is a written IOU.
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Gifts to Lawyer or Lawyer's Family
- You may not:
- 1) Solicit a substantial gift from a client, OR
- 2) Draft a legal instrument that provides a substantial gift to you or your relative for a client, UNLESS Client is a close relative.
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Relationship with Opposing Counsel
- If opposing counsel is immediate family, Client must give informed consent.
- CA: includes other 'intimates,' eg shackmates
- No imputed disqualification
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If Trial Counsel is a Necessary Witness...
- ABA: TC cannot serve as counsel and witness UNLESS
- 1) Testimony regards uncontested matter,
- 2) Testimony regards the nature/value of services rendered, OR
- 3) Your withdrawal is a substantial hardship on Client.
- CA: TC cannot testify in jury trials UNLESS
- 1) Testimony regards uncontested matter,
- 2) Testimony regards nature/value of services rendered, OR
- 3) Client provides written consent.
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Screening of Disqualified Lawyer to Avoid Imputation of Conflict
- No imputation if conflict arises from association with prior firm AND there is proper screening, where :
- 1) Disqualified lawyer is timely screened from participation in the matter,
- 2) Disqualified lawyer gets no fees from the matter,
- 3) Written notice is promptly given to any affected former client, AND
- 4) Certifications of compliance with screening procedures are provided to former client.
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Improper Use of Information Adverse to Client
You must NOT use info relating to representation to Client to disadvantage Client UNLESS given informed consent.
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Compensation from Third-Party
- You may not accept compenstaion for respresenting Client from someone other than Client UNLESS:
- 1) Client gives informed consent, (CA req's written)
- 2) No interference with lawyer's independent professional judgment or lawyer-client relationship AND
- 3) Info related to the representation is protected.
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Aggregate Settlements
When representing multiple clients, you must have written informed consent from each client before settlement.
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Settling Malpractice Claim with Client
- Reqs:
- 1) Advising Client to obtain independent counsel, AND
- 2) Giving Client reasonable chance to consult with independent counsel.
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Conflicts with Former Clients
If Client's interests are materially adverse to former client's interests, you cannot represent Client unless former client gives informed, written consent.
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Conflicts from Prospective Clients
- If received info from prospective client that could be harmful to prospective client, you cannot represent Client with interests adverse to prospective client in substantially related matter, UNLESS:
- 1) There is written informed consent given by both Client and prospective client, OR
- 2) For imputation, disqualified laywer is timely screened and doesn't share fees.
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Sarbanes-Oxley Act
- If a securities lawyer becomes aware of a material violation, lawyer must report to:
- 1) Chief legal officer, AND THEN
- 2) To the Board or highest authority, AND THEN
- 3) To SEC, IF reasonably necessary to prevent substantial financial injury, rectify injury if lawyer's services were used, or prevent Client from perjury.
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Interests of an Organization
- If there may be substantial injury to organization,
- 1) Lawyer MUST report to highest authority of org, AND THEN
- 2) Lawyer MAY report to appropriate persons outside of org, to extent reasonably necessary
- CA: No reporting to outside persons UNLESS necessary to prevent criminal act that'll cause death or SBI
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Former Government Attorney
- Former government attorney may NOT represent Client if worked 'personally and substantially' on connected 'matter' as government attorney, UNLESS government agency gives informed, written consent.
- Matter - specific dispute between spcific people over specific issues
- CA: Former prosecutors CANNOT later participate on defense side of the case.
- Imputed Disqualification: Disqualified lawyer may be screened.
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Non-Contingent Fee Agreements
- Must contain:
- 1) How fee is calculated,
- 2) Services covered,
- 3) Dutes of Lawyer and Client.
- CA: Agreements must be in writing, UNLESS:
- 1) Fee <$1K,
- 2) With a Corporate Client, OR
- 3) Emergency or impractical situation.
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Contingent Fee Agreements
- Req's a written fee agreement, signed by Client, containing:
- 1) %
- 2) What expenses are deducted from recover, AND
- 3) Whether % is taken before or after expenses deduction.
- CA: also req's:
- 4) How work not covered by contingency fee will be paid, AND
- 5) That Lawyers' fees are negotiable.
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Cases where Contingency Fees are Prohibited
- ABA:
- 1) Domestic Relations
- 2) Criminal Cases
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Limits on Fee Amount
- ABA: Fees must be reasonable, considering labor, novelty, difficulty, skill and time req'd, result, etc
- CA: Fee must not be unconscionably high
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Contingency Fees
- Fees that are dependant on successful resolution of Client's case and payable from judgment proceeds.
- If discharged before resolution, you are entitled to reasonable value of services performed if Client wins.
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Fee Splitting
- In Law Firm: Allowed
- Outside Law Firm: Allowed IF:
- 1) Total fee is ethical,
- 2) There is written disclosure and client consent, AND
- 3) Division is proportional.
- Non-Lawyers: Not Allowed EXCEPT:
- 1) Salaries for non-lawyer employees, AND
- 2) Sharing with nonprofit organixzation that employed or recommended lawyer.
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Partnerships with Non-Lawyers
- Prohibited for purposes of providing legal services.
- BUT Reciprocal Referrals allowed if:
- 1) Not exclusive, AND
- 2) Explained arrangement to Client.
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Advertising Rules
- 1) No false or misleading communication
- 2) Ad must include name and office of a lawyer or firm responsible for content
- 3) No payment for recommendations
- 4) Reciprocal Referral Arrangements allowed
- CA: Prohibits:
- 1) Guarantees/Warranties
- 2) Suggestion of quick settlement
- 3) Impersonation of Lawyer/Client without disclosing that it is impersonation
- 4) Dramatization of accident w/o disclosure
- 5) Contingent Fee Offer w/o info about litigation costs
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Disclosure of Professional Liability Insurance
- Lawyer who doesn't have professional liability insurance must inform Client in writing IF reasonably foreseeable that amount of legal representation will exceed 4 hours.
- EXCEPT:
- 1) Gov't or in-house counsel,
- 2) Services rendered in emergency, OR
- 3) Lawyer has previously advised Client.
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Exceptions to Attorney-Client Privilege
- 1) Client seeks Att's services t enable or aid a future crime or fraud,
- 2) Communication is relevant to an issue of breach of duties in Attorney-Client relationship,
- 3) Former joint clients now in civil litigation, OR
- 4) Evidence of competency or intention of Client for a will or intervivos transfer.
- CA: Also:
- 5) Necessary to prevent a criminal act resultig in death or SBI
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Client's Property
You have a duty to safeguard Client's property by labeling and storing in a safe place.
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Client's Money
- Client's money must be held in a Client Trust Account, bearing interest for Client.
- Smaller funds held for a short period may be held in Pooled Client Trust Accounts, with interest going to pay banks' fees and then State Bar.
- No commingling
- Duty to Keep Records (CA req's 5 years)
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Communication with Represented Person
- You must not communicated about Matter with Person you know is represented by Counsel in Matter, UNLESS Counsel granted permission.
- Person cannot give permisssion.
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Duty to Commnication
You have a duty to keep Client informed about the case, including settlement offers and answering Client's messages.
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Duty of Competence
- You must use legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
- Otherwise, subject to:
- 1) Discipline,
- 2) Disqualification in matter, OR
- 3) Malpractice liability.
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Scope of Representation
- Client makes substantive decisions.
- Laywer makes decisions on procedure and legal strategy.
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Withdrawal
- Mandatory W/D if
- 1) Continuing representation would violate law or ethical rule, OR
- 2) Impaired ability to represent Client.
- Permissive W/D if
- 1) W/D will not cause undue disruption, (Not in CA)
- 2) Client persists in acts Att reasonably believes to be criminal or fraudulent,
- 3) Client used Att's services to perpetrate crime or fraud, (Not in CA)
- 4) Client insists on acts Att finds repugnant or has fundamental disagreement,
- 5) Client substantially fails to fulfill obligations and has been given reasonable warning,
- 6) Representation will result in unreasonabl financial burden on Att, OR (Not in CA)
- 7) Other good cause.
- Procedures:
- 1) Timely notice to Client, AND
- 2) Prompt return of fee and expense advances AND Client's property and material papers
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Duty to make Truthful Statements
- You must not knowingly...
- To Tribunals:
- 1) Make false statement of material fact or law,
- 2) Fail to correct false statement of material fact or law you previously made,
- 3) Fail to disclose controlling legal authority directly adverse to Client, OR
- 4) Offer false evidence.
- To Others:
- 1) Make false statement of material fact or law, OR
- 2) Fail to disclose material fact when necessary to avoid assisting a crime or fraud by Client, UNLESS prohibited by confidentiality.
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Client Perjury
- You may not facilitate Client Perjury.
- Civil: You must refuse to call client.
- Criminal: You may..
- 1) Counsel Client, AND THEN
- 2) Ask court for permission to W/D, AND THEN
- ABA:
- 3) Tell court, even if priviliged info
- CA:
- 3) Allow Defendant to testify in the narrative.
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After False Evidence is Offered...
- You must take reasonable remedial measures:
- 1) Counsel Client to w/d or correct false evid, AND THEN
- 2) Ask tribunal for permission to w/d.
- Duties end w/ proceedings, which is after time for appeal has run
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Duty to Produce Evidence
- For Instrumentalities of a Crime, then you must not obstruct access to or tamper with it.
- You may retain evidence for a reasonable time to prepare for case, but cannot alter or destroy.
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