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PROFESSIONAL RESPONSIBILITY MINI
1. Duties to the CLIENT - To client - Confidentiality, Loyalty, Financial responsibilities, Competence a. To others - Candor to the Court, Fairness to Adversaries, Dignity/Decorum to the Profession
2. Confidentiality - A lawyer must not reveal any information relating to the representation of a client. a. MAY reveal if - (1) Consent (2) Prevent Imminent Death or Substantial Bodily Harm (3) ABA - Fraud or substantial financial loss (4) Defense (5) Compelled i. *CA - must persuade not to commit the crime inform of decision to reveal. No rule for confidentiality but arises from the oath you take. ii. ABA Model Code - May reveal a clients express intention to commit ANY crime
3. Loyalty (Conflicts of Interest) - The lawyer owes a duty of loyalty to his client and must exercise professional judgment solely for the benefit of his client. If an interest of the lawyer, another client, or a third party materially limits or is adverse to loyal representation, you have a conflict of interest. a. Potential Conflict - Must not represent unless (1) Reasonably believes he can represent everyone effectively (2) inform each affected client (3) client consents in writing (4) not prohibited by law (5) Not one client suing the other. b. Imputed Disqualification - All members of the firm share conflicts, including any group of lawyers that work closely or share responsibilities. (*CA - case law establishes imputed disqualification) i. Exceptions - (1) Government service (2) Personal conflict (3) Screen / Inform / Consent c. Conflicts between Lawyer and Client i. Business Transactions - (1) Terms are Fair and Reasonable to the client, (2) Full Disclosure (3) Opportunity to Consult outside counsel (4) Written Consent ii. Publication Rights - (*CA allows)
1. ABA - Cannot negotiate or accept publication rights prior to end of representation.
2. *CA - Allowed as long as client (1) clearly understands and (2) consents iii. Limiting Liability - You cannot proscriptively limit your client's right to report you for ethical or other professional violations.
1. Malpractice Liability - ABA ok to settle or limit if represented by counsel iv. Loans and Advances to client (CA Allows loans in writing)
1. ABA - NO financial assistance, except for costs and litigation expenses
2. *CA - allows loans for any purpose, as long as there is a written agreement. v. Use of Information - Use of information relating to the representation of a client to her disadvantage and without consent violates the duties of both loyalty and confidentiality vi. Gifts - Must NOT (1) solicit a substantial gift from a client, or (2) draft a legal instrument for a client (3) who is not your close relative if it provides a (4) substantial gift to you or your relative. vii. Close Relationship with Adverse Counsel - Cannot oppose a party represented by a relative without informed client consent (Not imputed) viii. Trial counsel as a necessary witness
1. *CA - prohibits attorneys from testifying in jury trials unless client consents
2. ABA - Can't serve as counsel and witness unless (1) Will not prejudice client and (2) Testimony is uncontested or has distinctive value. 1
ix. Sex With Client - ABA - Cannot engage in consensual sex with a client unless there was a preexisting sexual relationship.
1. *CA can engage unless (1) Conditioned upon (2) Coercion / Undue Influence (3) Affects representation d. Conflicts Between Clients i. Opposite Sides of the Same Matter - If the parties are in direct conflict it is unreasonable to represent both clients either personally or imputed through law firm. ii. Conflict with Present Client's Interests
1. ABA and *CA - Cannot take a case adverse to a current client's interests.
2. *CA Statutory Exception - Representing insurance company and insured. iii. Multiple clients in the same matter
1. If a Direct conflict develops (1) Withdraw (2) Advise to attain separate counsel.
2. In Criminal Matters, dual representation may also impede the Sixth Amendment's guarantee of "effective assistance of counsel" iv. New Client in matters Related to Former Client - If confidential information from another client might be relevant to work on a new client's matter, you may be violating the continuing duty of confidentiality as well as the duty of loyalty to the former client.
1. Imputed Disqualification - Imputed disqualification applies to the firm if (1) the matters are substantially related, AND (2) any remaining lawyer has confidential material information. v. Former government lawyer now in private practice
1. ABA - if government lawyer worked (1) personally and (2) substantially on a "matter", then a conflict would arise on the same matter later in private practice a. Consent - May attain consent in writing from government employer.
2. *CA - explicitly bars prosecutors from later working on the defense of the same case, however case law allows screening of government lawyers
3. Imputed disqualification - Other firm's lawyers may represent client if: (1) Former government lawyer is screened (2) Does NOT share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); ANS (3) Government employer is informed and consents e. Conflicts due to Third Party Interference i. Compensation - Compensation for services from a third party is permitted only with informed client consent. ii. Organizational clients - A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
1. ABA - mandates "reporting up" and permits limited "reporting out"
2. *CA - permits "reporting up" and prohibits "reporting out"; however, a CA lawyer cannot be disciplined for complying with federal law.
3. SARBOX - If an Attorney discovers violations of securities laws he: a. First, MUST report the matter to the CEO, CFO, or CLC. b. If they do NOT respond, MUST go to the Board or highest authority in the company c. If lawyer reasonably believes necessary to prevent fraud or substantial injury to the organization or investors, or if his services were used, he may disclose confidential information to the SEC without client consent.
4. FINANCIAL DUTIES TO A CLIENT 2
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