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Professional Responsibility Rule Statments
Terms in this set (14)
Formation of Lawyer-Client Relationship
In general, there is no duty to accept representation. However, there is a duty to reject if it would violate an ethical rule. The attorney-client relationship begins when the client reasonably believes the relationship exists, and no formal writing is required.
A lawyer must charge fees that are reasonable under the circumstances. Lawyer fees are regulated for reasonableness based on the amount and nature of the fees. Only contingent fee arrangements must be in writing, but all rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.
Confidential communication between a client and his lawyer is privileged. The client must intend for communication to be confidential, and the communication must be for purpose of seeking legal advice and representation. The client holds the privilege, and the lawyer must assert the privilege on his client's behalf. Finally, the privilege is indefinite, and survives the client's death.
In California, a writing that reflects a lawyer's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. Other lawyer work product is only discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim/defense or will result in an injustice.
Duty of Confientiality
A lawyer is prohibited from disclosing information relating to the representation of a client, unless the disclosure is authorized by the informed consent of the client or impliedly authorized in order to carry out the representation. A lawyer must take reasonable precautions to safeguard confidential information from inadvertent/unauthorized disclosure to unintended recipients.
Conflict of Interest
In general, a lawyer must not represent a client if representation may be materially limited by the lawyer's own interests, unless lawyer reasonably believes he can provide competent and diligent representation to the affected client, the representation is not prohibited by law, and the affected client gives informed written consent.
Conflicts: Current Clients
In general, lawyers cannot represent clients with directly adverse interests unless the lawyer reasonably believes he can provide competent and diligent representation, the representation is not prohibited by law, the client isn't asserting a claim against another client in the same litigation, and the clients give informed written consent.
In California, a lawyer needs informed written consent to represent clients with potential or actual conflicts, to represent a current client and take on a new client with interests adverse to the current client, or to accept a new client because representation of the current client leads to confidential information material to the new client's matter.
Conflicts: Current and Former Clients
A lawyer cannot represent a new client in the same or substantially related matter as a former client if the new client's interests are materially adverse to the former client's interests, unless the former client gives informed written consent.
In California, a lawyer is not permitted, without the informed written consent of the former client, to accept employment adverse to the former client in which, by reason of the representation of the former client, the lawyer has obtained confidential information material to the employment.
Conflicts: Prospective Clients
A lawyer cannot represent clients with materially adverse interests in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the current client unless both clients give informed written consent and there is limited exposure, timely screening, and notice to the prospective client.
Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
In California, a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. Competence is the application of the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. The California rule regarding professional competence also includes the duty to supervise.
A lawyer must be dedicated and committed to a client's interests despite inconvenience or obstruction, and must control his workload, act with reasonable promptness, and pursue all matters to completion.
A lawyer must not make false or materially misleading statements about himself or his services. The Model Rules hold that a communication is misleading if it contains a material misrepresentation of law or fact or omits a fact necessary to make the statement as a whole not materially misleading.
Solicitation of prospective clients in person, by live telephone, or by real-time electronic contact is prohibited when a significant motive for the lawyer's action is the lawyer's pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the soliciting lawyer.
Misconduct Committed by Others
In general, a lawyer is subject to discipline for misconduct by others if the lawyer orders the misconduct; ratifies it with knowledge of the specific conduct; or has direct supervisory authority over another lawyer or law-related employee, if he knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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