Professional Responsibility Summary

denisesms's version from 2016-12-14 16:02


Professional Responsibility Summary
Question Answer
Duties owed to clientconfidentiality + loyalty + financial responsibility + competence
Duties owed to 3rd partiescandor/truthfulness + fairness + dignity/decorum
Duty of confidentialitydon’t reveal anything related to the representation of the client without her consent. Exceptions: consent + implied consent (for what’s necessary for your legal services) + establishing your claim/defense if client sues you for malpractice OR brings disciplinary charges against you OR refuses to pay and you have to sue him for fees + [ABA only: what’s necessary to prevent reasonably certain death/substantial bodily harm + to prevent/mitigate substantial financial loss if your client used/using your services to commit fraud/financial crime] + [CA only: if client’s act is reasonably certain to result in death/substantial bodily harm and you first make a good faith effort to persuade him not to (if reasonable under the circumstances) and tell him you’re going to reveal]
Concurrent Conflict of InterestRepresentation of the client will be directly adverse to the interest of another client OR there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interest or the interests of another client
Duty of LoyaltyIf an interest of another client, yourself, or a third party materially limits or is adverse to loyal representation, you have a conflict of interest. Actual & potential. You’re normally responsible even if ignorant about conflict.
Exceptionfor short-term legal services you’re only responsible if you actually know of conflict
Imputed DisqualificationAny group of lawyers that work together or closely share responsibilities share each others’ conflicts
Exceptionswhen one lawyer’s conflicts arise from pervious govt. service OR work for adverse parties at a previous firm + [CA only: purely personal OR short-term legal services]
Remedieswithdrawal OR advise clients to get separate counsel OR refuse to take the case OR ethical wall
If taking the case[ABA only: reasonably believe you can represent everyone despite actual/potential conflict + inform each client + each client consents in writing] OR [CA only: you believe you can represent everyone (it does not have to be reasonable) + inform each client + written disclosure]
Govt. lawyers now in private practicecan only work on a matter he was personally & substantially involved in w/ govt.’s consent; as for imputed: screen him off + no fee sharing + govt. employer informed
Limiting liabilitycan’t limit client’s right to report you for ethical/professional violation. [ABA only: can limit your malpractice liability if client independently represented in making the agreement] [CA only: can’t limit malpractice liability] If malpractice suit, can only settle after written advice to client to obtain outside counsel first.
Publication Rights contract[ABA only: only after representation ends] [CA only: discouraged before end, but tolerated if judge satisfied client understands & consents]
Loans/Advances to your client[ABA only: financial assistance forbidden except litigation expenses for indigent client or advancing expenses in contingency fee case] [CA only: forbids promises to pay for prospective client’s debts, allows loans to a client for all matters/any purpose with a written loan agreement]
Enter into business transactions w/ client/obtain adverse intereststerms fair to client + disclosed in understandable writing + client had opportunity to consult outside lawyer + [ABA only: client provides written consent]/[CA only: written disclosure]
Close relationship w/ adversary’s lawyer[ABA only: client consent] [CA only: written disclosure]
Payment by a 3rd partypermitted only with informed client consent + not interfere w/ independence of lawyer’s prof. judgment + info relating to representation of client remains protected
Atty.’s fees in non-contingent casehow fee is calculated + what services are covered + lawyer & client’s duties + [CA only: in writing (unless fee under $1k, with a corp. client, emergency/impractical, routine services for regular client)]
Atty.’s fees in contingent casewritten + signed by client + lawyer’s percent + what expenses deducted from recovery + whether percent taken before or after expenses + [CA only: how work not covered by contingency fee will be paid + state that lawyer’s fees are negotiable].
When can use contingency fee Can’t use in criminal or domestic cases [CA only: can use in domestic cases if don’t “promote dissolution”]
Fees[ABA only: must be reasonable]/ [CA only: must not be unconscionably high]
Fee splitting with lawyer outside firmclient consent + written disclosure + [ABA only: in proportion to work done unless jointly responsible for case]
Duty of Competenceusing the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
Duty of Diligencediligently, promptly, and zealously pursue your case to completion
Duty to Communicatekeep your client informed about the case, including settlement offers & answering messages
Duty to Avoid Prejudicial Extrajudicial StatementsProhibited: A lawyer involved in a matter from making extrajudicial statements + that a reasonable person should expect to be publicly disseminated + if he knows or should know the statements will have substantial likelihood of materially prejudicing the proceeding. Permitted: Lawyer permitted to state the offense/defense involved in case and the identity of persons involved.
Regulating Truthful Advertisinggovt. has substantial interest+ materially and directly advances that interest + narrowly tailored
Advertisingmust not be false/misleading [CA only: presumes improper if contains guarantees/warranties/predictions of result] + don’t mislead/omit material info+ targeted direct mailing must be labeled as advertisement + must identify 1 lawyer responsible for its contents + keep records for 2 years
Solicitationcan’t seek employment for pecuniary gain + by initiating + live/telephone contact + with person with whom no prior professional/personal/family relationship [CA only: presumes improper if scene of accident/ on way to/at medical facility/when person not in physical/mental shape to exercise reasonable judgment]
Duty of Candor to Court/Fairness to Adversarycan’t engage in conduct involving fraud/dishonest/deceit/misrepresentation
Duty to Present Facts/Evidence TruthfullyYou must refuse to make a false statement of material fact or offer evidence you know is false to a tribunal, or not fail to correct a false statement of material fact or law that you previously presented
If D in criminal case insists on testifying falselypersuade him to testify truthfully + [ABA only: must try to withdraw/ CA only: may try to withdraw] + [ABA only: tell the judge/ CA only: allow him to testify in narrative fashion]
Duty to Produce EvidenceYou must not suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty. You must not obstruct access to or tamper with fruits or instrumentalities of a crime.
Duty of Fairnessduty to behave honestly in all dealings in & out of legal practice
Duty to Preserve the Impartiality & Decorum of the tribunaldon’t try to influence improperly + no chicanery + preserve trial decorum

Random Duties

Duty to Expedite Cases
Duty not to Engage in/Facilitate Unauthorized Practice of Law
Special Duties of Prosecutors
Duty to Safeguard Client Money/Property
Duty to Keep Good Records
Duty to State the Law Truthfully
Duty to Uphold the Law