law school outline: legal professions

Legal Professions

(same as or in addition to ABA rules, unless otherwise noted)
Objective Admission Requirements
  • Age 18
  • Graduate from state accredited law school, or apprenticeship
  • Bar examination (CA has unlimited tries; no reciprocity, but foreign attorneys can pass test to be admitted to bar, or can appear pro hac vice for a limited period).
  • No citizenship or residency requirements, but can be required to maintain office in state.
  • Admission to federal court bar is separate.
Subjective Admission Requirements & Grounds for Disbarment
  • No knowing false statements of material fact
  • Full disclosures to correct known misapprehensions
  • Relying on right of nondisclosure requires disclosing that reliance
  • Commit criminal act or engage in conduct reflecting dishonesty, lack of trustworthiness, fitness as a attorney, fraud, deceit, misrepresentation (regardless of location of conduct).
  • Engage in conduct prejudicial to administration of justice

  • No references for unqualified applicants
  • Burden on applicant
  • Character, personal & mental health

  • Noncooperation, dishonesty or lack of candor
  • Affirmative duty of full disclosure for both applicant and attorney references.  Includes dishonesty on application for law school.

  • Criminal conduct, particularly act of moral turpitude, including as a minor.
  • Social conduct
  • Sexual conduct (prostitution)
  • Political views: Belief in philosophies contrary to oath, and membership in terrorist or militia.
Oath & Duties
  • Member may not commit, assist, solicit, counsel or induce any violation of the RPC or any law.   If this conflicts with ethical duty of confidentiality, attorney must resign.

  • Never mislead judge or judicial officer by false statement of fact or law
  • Maintain confidences of client
  • Cooperate and participate in disciplinary proceeding
  • Respond promptly to client's reasonable status inquiries & inform client of significant developments in case
  • Report to Bar: non-discovery related sanctions; felony indictment or filing of information;  conviction of attorney of felony; conviction of attorney of practice-related misdemeanor.
Purpose of Rules
  • Determine fitness to practice law. 
  • No statute of limitations.
Who May Practice Law
  • Active members of the state bar (ABA voluntary)
  • Foreign attorneys admitted pro hac vice

  • judge's approval
  • member of foreign bar in good standing
  • associated with local counsel
  • cannot be used for regular employment

  • Registered foreign legal consultants
  • Certified law students
  • Group legal service programs are protected by 1st Amendment, but must allow clients to choose outside counsel.  Groups can aid clients in finding counsel and directing clients to their counsel.  Cannot have lay participation in management or ownership.
  • Judges of justice courts
  • Suspended and disbarred attorneys can only do clerical work
  • Right of non-attorneys to represent themselves pro se
Unauthorized Practice of Law
  • Attorney shall not practice law where unlicensed, nor participate nor assist in the unauthorized practice of law.

  • "No person shall practice law in California unless the person is an active member of the State Bar." (6125)
  • Includes court appearances, drafting documents securing legal rights, giving personal legal advice, settlement negotiations, falsely holding onesself out as an attorney, assisting someone in the unauthorized practice of law
  • Specifically includes practicing CA law, without a CA license, regardless of attorney�s location;  practicing any law, without a CA license, in CA; and attorneys practicing law in a jurisdiction where they are not licensed.
  • Does not include customary and innocuous practices performed by an attorney in a state he is not licensed in.
  • Client consent or knowledge irrelevent.
  • Client's remedy:  Doesn't have to pay fees, but may have to pay in quantum meruit.
Restrictions on the Practice of Law
  • Attorney cannot restrict (or propose to restrict) another attorney's practice of law as a settlement provision or post-employment restrictive covenants.  Exception for retirement.
  • Attorneys can also have other professions, such as real estate agent, but the RPC applies to attorney's ancillary businesses which are law related unless client knows that privileges do not apply and that services are non-legal.  Full disclosure re: confidentiality and conflicts of interest.
Professional Independence
  • No sharing of fees with non-attorney, although profit sharing plan with non-attorney employees is ok.  Legal service plans ok if plan compensates attorney, but not if attorney compensates plan (therefore not technically law firm or professional corporation).  Plan can use client's premiums for overhead and profit.
  • Partnership with non-attorney to practice law is prohibited.
  • Non-attorneys may not direct or regulate professional judgment of a attorney.
  • Non-attorney cannot own an interest in nor be a director or officer of a professional legal corporation or association authorized to practice law for a profit.
  • Fees can be shared with attorneys in same firm.
  • Fees can be shared with co-counsel attorneys outside of firm so long as shared in proportion to services performed and responsibility assumed by each.   Client must be advised of situation.  Total fee must be reasonable.

  • Compensation for referrals is prohibited.  Gifts are ok, but not if given in consideration for referral or as indication of future referrals.
  • Attorney cannot allow a sponsoring organization or third person to interfere with independent professional judgment, the client-attorney relationship, or allowing unlicenced persons to practice law, or to split fees paid to member with non attorney.
  • Sharing of fees with non-partner or non-associate allowed only if client consent after full disclosure and the sharing does not increase the fee.
  • Bank or credit-card financing of litigation is fine.
Firm Name
  • Firm name and trade names must not be false, misleading or deceptive.  Multi-jurisdiction firms can use same name, but must indicate jurisdictional limitations on those not licensed to practice where office is located.
  • Name of attorney holding public office cannot be used unless attorney is actively and regularly engaged with firm.
  • Attorneys may not indicate a firm exists unless one does.
  • Of-counsel person is not an equitable partner and doesn't share clients, but shares space and the firm name.
  • Advertising is ok (1st Amendment protection on commercial speech), so long as name of attorney is given
  • False, misleading, confusing or deceptive communications prohibited
  • Prohibits communications which omit facts necessary to not mislead.
  • No compensation for referrals, except for non-profit attorney referral service.
  • Attorney can claim to be a specialist, but cannot claim certification unless truly certified by a named organization.
  • All advertising by an attorney involving coercion, duress or harassment is prohibited.

  • No communications (use of firm name, ads, unsolicited correspondence and stationary) may contain untrue statements, be false, deceptive or misleading, omit facts necessary to not mislead, fail to indicate that an advertisement is an advertisement, or be transmitted in a manner that intrudes, coerces, compulses, intimidates, threatens or harasses.
  • Specifically prohibited are: guarantees, warranties, predictions, testimonials (unless disclaimer), dramatization (unless disclaimer), contingency offers (unless disclosure of liability for costs), foreign language services unless really can provide in that language (along with name of person who speaks that language), ads by mail that does not say "advertisement" on envelope, communications to potential client who cannot exercise reasonable judgment, communication transmitted at scene of accident, en route to hospital, or in hospital, private firm name communication indicating relationship to government agency or public/non-profit legal service organization.
  • All advertisements must contain name of attorney.
  • In person and telephone solicitation initiated by the attorney or agent is prohibited, when significant motive is pecuniary gain.
  • Solicitation by an attorney by mail must contain the word "advertisement" on envelope (targeted mail ok).  Phone recording must start and end with "advertisement".

  • Solicitation is prohibited at jails (exception for public defender/assigned counsel), hospitals, courts, public places, and private institutions (nearly everywhere).  Misdemeanor.  Touting is fine, but not if paid.
  • Solicitation (in-person advertising or any advertising directed at someone who already has counsel) is prohibited, unless target is a former client, or if protected by 1st Amendment.
Acceptance of Clients
  • No obligation to accept every case.
  • Duty to reject and withdraw from cases which violates rules, unreasonable financial burden, or immoral motives, which lawyer is incompetent to handle.

  • Duty for lawyers to represent defenseless or oppressed.
  • Must reject case where client wants to harass, or maliciously injure a person, or where litigation is unwarranted.
Fees & Funds
  • Unreasonable Fee:   In hindsight, the fee must have been reasonable (i.e. what other attorneys would charge). Must not have been out of line for services performed.   All relevant circumstances considered, including superior bargaining power, time, nature and length of relationship, experience, reputation, ability and bargaining position of client.
  • Conspiracy to set fees or conscious parallelism violates unfair trade practices.  Minimum fee schedules enforced by discipline have been eliminated.
  • Fee agreement in writing must be established within reasonable time, otherwise presumption of undue influence because no longer at arm's length once relationship is created.
  • Contingency K must be signed by both attorney and client, and provided to client.  Writing must contain rate, liability for costs, payment for services outside of contingency fee K, statement that fee is negotiable.   Contingency fee not permitted in criminal nor divorce cases nor for expert witnesses or for securing legislation.  Referse contingency fee (% of amount saved) is permitted.  Ceiling on medical malpractice cases.  Exception to rule against attorney acquiring interest in outcome of case.  Gives attorney incentive and enables poor clients to sue, but encourages frivilous litigation.
  • Nonrefundable retainer not permitted.
  • Retainer agreement may not unreasonably limit client's right to discharge attorney, including by excessive fees.
  • Cash receipt of more than $10k requires IRS reporting.   (check also?)
  • Attorney cannot withhold services for lack of payment.   Attorney suing a client is strongly discouraged, but ok if asserted in good faith and with prior demand.
  • Liens: Contingency lien allows attorney to have a lien on part of judgment obtained for client by subsequent attorney.  Retaining lien allows attorney to retain client's property until fees are paid (restricted).
  • Fees can be forfeited or disgorged upon showing of incompetence or misconduct.

  • Fee dispute mediation is optional for client, mandatory for attorney at client's option.
  • Fees > $1k requires retainer, signed copy provided to client.  Must include basis of computing fees (hourly rate), general nature of services to be provided, responsibilities of attorney and client; unless emergency.   Anything not in K will be construed against attorney.  All bills must be detailed.  Must provide bill upon request, max. 1/month
  • Quantum meruit claim for reasonable fee available if fee K is thrown out
  • Retainers:  Unearned retainer must be kept in trust account until earned, then withdrawn.  "True retainers" (keeping attorney ready, willing and available) is not so good, because purpose of $ is undefined and makes attorney unavailable to other clients.  Advance payment retainer is better because purpose is defined.
  • Fees must not be illegal nor unconscionable.
  • Client funds (including unearned retainer) must be kept in a trust account, interest of which goes to state bar for indigent legal services.  No comingling of trust account with law firm money.  When funds have been earned, must be withdrawn ASAP.
Competence & Malpractice
  • ABILITY (knowledge & skill) to perform required services:  Cannot accept matter which you know or should know you are incompetent to handle, without first associating a competent attorney.
  • CARE (thoroughness & preparation) in performing those services:  Must be performed properly and with adequate preparation and thoroughness.  Attorney must act with reasonable dilligence and promptness; must communicate with client; must represent client zealously (reasonably available means, including technicalities); maintain confidences, loyalties, separation of property and money, avoid conflicts of interest. 
  • Attorney can turn down a case without giving a reason.  If he gives a legal analysis/opinion/reason, he must reasonably investigate the claim before responding, even if not retained, because that opinion will be relied upon.
  • 6th Amendment guarantee of "effective counsel" for criminal defendants requires challenging D to show that counsel's performance prejudiced D in such a way that it deprived D of a fair trial [i.e. causation = D was innocent]. Presumed in certain agregious circumstances, such as actively representing conflicting interests wihch results in adverse interests or complete denial of counsel. Objective standard of reasonable care is used, and courts defer to reasonable professional judgment and trial strategy.
  • Discipline for willful failure to perform legal services for which he has been retained.  Negligent or careless = act of moral turpitude and professional misconduct.
  • Incompetent representation = malpractice.  Malpractice claim requires (1) attorney-client relationship, (2) attorney acted negligently or in breach of contract, (3) proximate causation [underlying case would have won but for attorney's negligence; hard to demonstrate in criminal case because D's act is the proximate cause of the jail sentence, unless proof of innocence], (4) but for D's conduct, P's claim would have been successful (trial in a trial).
  • Standard of care is what a reasonable attorney with ordinary prudence in same location and same situation would do.  Ethical codes do not set standard of care.  Attorney holding himself out as a specialist has higher standard of care.
  • Firm is responsible for actions of associates, and non-attorneys in the firm, and must train associates to be ethical.  Partners, supervisors and those who are aware of a co-worker's malpractice are vicariously liable.  Associates are themselves responsible as well.
  • Liability to TP's for whose intentional benefit the legal work was done (intended beneficiary), or for those the attorney foresees or should foresee reliance on the legal work (opinion briefs).
  • Malicious prosecution and defense:  Acting maliciously without probable cause.
  • Decisions aren't usually set aside due to incompetent counsel.   Remedy is to sue the attorney for malpractice.
  • Errors in judgment are not necessarily actionable, nor is the outcome of the case.  Attorney's performance is weighed against skills of other attorneys in jurisdiction.
  • Liability can exist for failure to provide advice for legal problems which are reasonably apparent, even if outside the scope of representation.

  • Ethical codes can set the standard of care.
  • Pattern of incompetence is required - one free bite.
Attorney-Client Relationship
  • Created when attorney advises client or provides legal services at client's request; money isn't the controlling factor.  Terminates when client believes or should reasonably believe it terminates, and when substitution of counsel is filed.
  • K should limit scope and objectives of the representation; client must consent to limitation.
  • Attorney must abide by client's decisions re: objectives of the case (settlements, abandonment, pleas, testifying) and expenses. 
  • Attorney has control over the means to achieve the objectives (procedural matters).
  • Attorney cannot counsel client to engage in or assist in crime or fraud, but can discuss legal consequences or help determine validity, scope, meaning or application of law.
  • Attorney must keep client reasonably informed about status and promptly comply with reasonable requests for information.
  • Attorney has fiduciary relationship with client, and must avoid conflicts of interest and using client's information to attorney's advantage.
  • Attorney should remain an advisor, not a principal, in relation to client.
  • Attorney must turn over file to client upon client's request, after relationship has been completed.  Cannot retain file in order to obtain payment of fees.  Client can see file at any time during representation.
  • Attorney cannot withdrawl without client's approval if matter is pending before the court.
Confidentiality & Privilege
PrivilegeAttorney (or one reasonably believed by client to be a attorney) and his agents must maintain (burden on asserter of privilege to establish privilege) client's (one who consults a attorney for the purpose of securing legal service or advice [not business advice] in his professional capacity; separate person from attorney; applies equally to prospective clients) confidences (communications transmitted between client and attorney or his agents in the course of their relationship, for the purpose of rendering professional legal services, and in confidence - no TPs except agents and those necessary to further interest of client or accomplish purpose for which attorney is consulted) obtained for legal assistance and advice (anticipation of litigation not required).

  • Electronically transmitted messages are covered.
  • Extends after death, but possible exception for old matters of historical significance.
  • Attorney cannot reveal nor use for own gain, even if not adverse to client's interests.
  • Work product doctrine: Work is discoverable if denial will unfairly prejudice party seeking discovery or will result in injustice.  Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or or theories is absolutely protected in all circumstances, even from the client.
  • Cannot turn in client to save wrongfully accused nonclient, but cannot assist client in actively facilitating the conviction of innocent person.
Ethical Duty of Confidentiality
  • MR: Attorney may not disclose any information related to representing the client, regardless of source, and cannot use information to client's disadvantage or attorney's advantage.
  • ABA Code: Can't disclose information that would embarass or disadvantage client, or confidential information.
  • Fiduciary duty
  • Triggered by receipt of confidential information, regardless of existance of attorney-client relationship.
  • Applies even if communications aren't privileged.
  • Publicly known information.
  • Crime exception

  • MR: Attorney may disclose only to prevent criminal act likely to result in death or substantial body harm. 
  • ABA Code: Attorney may reveal intention of client to commit any crime.  Short of that, "noisy withdrawal" is the only option.
  • In order for privilege not to apply, goverment must establish that communication itself must have been in furtherance of the crime or fraud.  In camera review if P can show good faith belief by reasonable person that review may reveal evidence to establish claim that crime-fraud exception applies.  Applies only to communications, not work product.  Withdrawing attorney should disaffirm her work ("noisy withdraw") if it will save OP from ongoing (but not past) fraud.

  • Physical evidence (fruit or instrumentality of a crime)

  • Possessed or removed by attorney must be turned over to P after reasonable period of examination, if attorney's actions have preculded P from making that same observation.  Fact that evidence was turned over should not be used by P.  D should not tell P the source of the evidence.
  • Information about location and observations of evidence (even taking photos), even if it is about to be destroyed by TP, is confidential and does not have to be disclosed. 
  • Counseling client to destroy evidence (including business records) is prohibited if the evidence is knowingly about to be produced in evidence. 
  • Touching physical evidence, without removing or destroying it, is arguably protected because OC still has uninterrupted access to original location, but arguably it is altering evidence, which is bad. 
  • Failure to examine & test evidence may be malpractice because it could be exculpatory (leave decision to client).  P can discover what tests were performed on the evidence because those tests may have altered the evidence.

  • Disclosure permitted to others in firm and agents, yet duty to supervise.
  • Attorney self-protection, if reasonably necessary to establish a claim or defense in criminal charge, civil claim, or other proceeding.  Client waives privilege by breaching K.
  • Disclosure ok if court order (based on OC's strong showing of need and unavailability), required by statute, or client waiver.
  • Identity of client, fees, general nature of work, coaching in testimony.  Only protected if overwhelming evidence indicates such disclosure amounts to confidential information (last-link doctrine).  Incriminating the client is not an issue - the issue is that the revelation would be the same thing as the government learning a privileged communication.  Fee K is confidential.
  • Client can waive confidentiality by disclosing to TP, or consent.  Selective waiver is ok.  Only the holder of the privilege (client) can waive.  Waiver by attorney, i.e. inadvertant fax, is not a true waiver, and receiving attorney cannot read, keep nor use information.
  • Facts and records are not privileged.   Facts which are memorialized in a letter to or from an attorney are not protected in themselves, but the letter is protected.  Documents are protected only if they were privileged before turned over to attorney, or if the dominant purpose of the generation of the document was to get legal advice.  Authentication of physical evidence (turning over records or a gun) is not a testimonial admission, and not covered by 5th Amendment.
  • Attorney relaying message to client from government, i.e. about court dates.

  • There are no exceptions to the ethical duty of confidentiality.

  • Except for disclosures necessary to further the representation (i.e. to agents of the attorney).

  • Attorney-client privilege does not apply for disclosure necessary to prevent imminent criminal act likely to result in death or substantial bodily harm, but no duty to disclose, but ethical duty DOES still apply.
  • No Tarasoff duty.
  • Attorney may not commit a crime such as harbouring a criminal or affirmatively further a client's unlawful conduct, but cannot reveal location of fleeing felon.
  • Privilege does not survives death of client.
  • Fee information should be privileged, but courts have construed that fees and ID are not privileged, even when last-link.
  • Attorney who inadvertantly receives confidential information from OC (i.e. accidental fax) can be used by recipient attorney, and recipient attorney need not take special action (although recent cases contra).
  • Ethical duty does not apply to discovery or court orders related to non-privileged information (?).
  • Attorney cannot participate in fraud, but cannot reveal to TP or OP.
Representing an Entity & Government
  • The client is the entity, not a particular person.  Must act in the best interests for the organization, with minimal disruption and keeping confidences.  Going outside the organization or for a second opinion to save it is unethical (violation of confidences) - resigning is the only option when officers are embezzling.
  • Corporate employees speak for the client (entity) if they are (1) the natural speaker of the corporation or (2) required by the corporation in their employment to make the statements (control group).
  • When the control group changes, the authority to assert/waive privilege changes as well.
  • Employees, as agents of the entity, who talk with corporate attorney are protected by confidentiality and privilege so long as dicsussion is within scope of employment and to assist attorney in providing legal advice to the entity, at the request of the control group.  Privilege belongs to control group, and new control group can disclose information given by employees in privilege to attorney.
  • Attorney can maintain a suit for retaliatory discharge damages (implied in fact K) when forced to quit because entity requires attorney to act contrary to ethical duties.  Cannot disclose confidences during that suit.
  • OC can have ex parte communications with unrepresented employees (other than control group) or unrepresented former employee of opposing party entity.  Matter must not cover employee's acts or failure to act re: matter which could bind corporation, or constitute an admission of corporation for liability.
  • Entity cannot appear in pro per.
  • White House:  Communicaitons between pres and WH counsel re: criminal law is not privileged, because WH counsel's role is to represent entity of Office of the President, not the person himself, and WH counsel owes duty to democracy, not the person (effect: attorney doesn't take notes and has bad memory).  Comm between the person and his private counsel is privileged.    All other communications between President and WH counsel are privileged.
Attorney Obligations in Adversary Proceedings & to Third Parties
  • Attorney cannot obstruct another party's access to evidence, destroy, falsify, or conceal evidence, or use illegal methods of obtaining evidence.
  • Attorney may not directly nor indirectly communicate with another attorney's client without attorney's consent.  Communications with non-represented opposing party requires disclosure of who you are and what interests you represent, and cannot advise party.  Attorney may not have ex parte contact with any current employee of an entity, but former employees are fair game.  Attorney can communicate with nonparty witnesses.   Communications with represented OP are permitted if attorney is expressly authorized by law to have such contacts (prosecutor can use agents and informants to talk with suspect in preindictment, non-custodial situations).  In a civil case, attorney can have his client tell him things about OP, but can't have client act as a spy.
  • Attorney cannot obtain confidential or privileged information about adversary's litigation strategy, including by interviewing their experts.   Unintended revelation of documents (i.e. wrong fax number) is not a waiver.
  • Attorney must be honest in communicating with others

  • No knowing false statements of material fact or law, but no duty to correct misapprehensions not involving deceit by attorney or client.
  • Obligation not to mislead court by omitting important facts. 
  • No duty to initiate factual disclosures which would be harmful to client (duty of confidentiality), unless necessary to avoid assisting in a criminal or fraudulent act by client.
  • Duty to disclose adverse controlling legal authority which a reasonable judge might wish to consider.
  • Duty not to misstate law.

  • No filing or threatening of criminal prosecution to gain advantage in civil case (extortion).
  • Attorney may not secretly record any conversation, without knowledge of all parties.
  • Attorney may not recklessly or knowingly make false accusations against the judiciary.
  • Client purjury

  • Client has an absolute constitutional right to testify.  Proper way to interview client in law office is to ask what he suspects the other side will say about him, not what "really" happened (selective ignorance).
  • Attorney may not knowingly actively participate in purjury (subornation of purjury), i.e. by asking questions of the client on the stand which elicit purjury.
  • Attorney must advise client against perjury.
  • Attorney must promptly reveal purjury by witness other than client.
  • CA: Attorney should attempt to withdraw, but then use narrative approach on direct (P cannot use as evidence of guilt; attorney cannot rely on testimony later).  Cannot reveal to judge or anyone else due to privilege.
  • ABA: (1) If purjury is completed, tell client to correct.  If purjury is contemplated, tell client that you must reveal to court; (2) Attempt in camera withdrawal, without revealing perjury.  If that fails, must prevent client from testifying (if possible), or reveal to judge.  If attorney learns testimony was purjury, must take reasonable remedial measures.
  • If on direct, attorney must try to withdraw (judge won't allow) and then use narrative.  Unclear on if this applies to both national and federal, and what to do under cross-x.

  • Release from liability obtained from a person for an injury, within the first 15 days after hospitalization, or prior to release from hospital, whichever occurs first,  is presumed fraudulent.
  • Attorney's personal interests

  • No interest in subject matter of employment, i.e. media rights, until conclusion of all aspects of case (CA says it's ok unless attorney deliberately sensationalizes trial).
  • No financial interest adverse to client.
  • Cannot loan money to client while litigation is pending or contemplated (advancing litigation expenses is ok, even if contingent).
  • Business transactions with client are presumed to be with undue influence.  Allowed only if (1) Transaction must be fair and reasonable to the client with full written disclosure to client; (2) client has reasonable opportunity to seek independent counsel (waivable).
  • Beneficiary gifts from client to attorney, via document drafted by attorney, are prohibited, unless client has had disinterested advice of competent attorney.  Exception for friends and relatives.
  • Attorney and client cannot agree to place limitation on malpractice liability or claims unless (1) state allows it (CA does not), and (2) client is independently represented in making agreement.  Attorney cannot settle malpractice claim unless client is independently represented.
  • No prohibition of sexual activity with current or former client, so long as not a requirement for representation.
  • CA allows client to waive almost all conflicts.
  • All post-retainer agreements between attorney and client are heavily scrutinized.

  • Multiple clients being concurrently represented

  • Cannot sue a current client without his consent.
  • In litigation: Attorney must decline or withdraw from one of the clients if interests are directly or potentially differing.  Representation of co-parties in criminal or PI is really bad (because A may need to testify against B).  Applies when both clients are adverse, even if matter of adversity isn't what attorney is representing clients for. Potential conflict requires notice, actual conflict cannot be waived.
  • Nonlitigation:  Full disclosure and consent of all clients; no adverse effect on clients; withdrawal if conflict develops.
  • No privilege between clients in subjequent civil controversy between themselves.
  • One client cannot waive other client's privilege.

  • Third parties

  • Duty to TP must not impair attorney's independent judgment and loyalty to client.
  • Compensation from TP must be consented to by client, TP must not interfere with representation, and must not violate confidences.
  • Insurance co. attorney represents claimant and insurance co., and that is ok because of public policy.  But still duty to avoid conflicting interests and impaired loyalty.   Settlement offer must be evaluated as it applies to client, not company.   Attorney must resign if conflict arises, and client gets independent counsel.

  • Former clients

  • Still owed complete loyalty.  Attorney may not represent a party adverse to the former client's interest.
  • May not successively represent opposing parties in same litigation or substantially related matters.
  • Consent of clients can waive conflict.
  • Attorney cannot sit on a jury or testify against a former client.  CA allows with informed written consent. (???)

  • Conflict of one attorney affects other attorneys in the same firm, even if in different cities, and between parent, child, sibling or spouse (informed consent ok; California adds cohabitants, but only requires notice, no consent).
  • Once relationship exists, attorney cannot represent someone with adverse interests (conflict of interest).  Must search for conflicts of interest prior to exchange of any confidential information or representation.  Duty continues even after representation ceases.
  • Attorney is an agent of the client, and as such can legally bind the client.  Decision to settle a case or plea rests with client alone, and attorney has a duty to inform client of written settlement agreements and all offers to plead.  Attorney's statements may be vicarious admissions of client.  Agency brings with it fiduciary duties of confidences, presumption of undue influence for attorney's transactions with client, duty of dilligence, and duty of loyalty, which survives termination of relationship (conflicts of interest).
  • Conviction of felony or misdemeanor involving moral turpitude (disbarment)
  • Violation of court order
  • Violation of oath
  • Appearing as attorney for a client without authority
  • Commission of act of moral turpitude, dishonesty or corruption in the course of his relations as an attorney.
  • Advocacy of overthrow of government
  • Insurance fraud
  • Requring sex for legal services
  • Coerce, intimidate or use undue influence over a client for sexual relations (exception for spouse and domestic partner).
  • Working on both sides of the case
  • Deceiving the court or any party
  • Delays client's suit for own gain
  • Purchasing evidence of debt to bring suit thereon (?)

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