I've got a conflict, you have an issue.
What is the duty of loyalty?
A lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of client above all other interests and avoid any conflicts of interest.
Key word: Corporation
It invokes both the issues of scope of representation and the lawyer's duty to communicate.
Often, when a lawyer fails to inform the client about a possible settlement, offer, or plea.
Similar to the broad scope of the duty of fairness, anytime a lawyer acts inappropriately in a fact pattern, you should also address
The lawyer's duty to the public/profession.
Tip: Use common sense to determine what you think the L should do and what you would do as an ethical lawyer.
Label the discussion "Duty to the Public/Profession" and analyze why the actions are or are not fair and/or ethical to clients.
The ABA has no writing requirement for regular ones but CA requires all of them over $1,000 to be in writing unless the client is a corporation, the agreement was made during an emergency, the client waives the writing requirement in writing, or the services are for a previous client with similar services in which this could be implied.
Fee agreements
Explain the duty to avoid conflicts of interests.
A lawyer must avoid all conflicts of interest with his client, including actual current conflicts of interest and potential future conflicts of interest.
Key words: Parties
L represents multiple parties
Whenever there is a conflict of interest between clients or an organization and its constituents, always raise these two duties.
Duty of loyalty
Duty of confidentiality (even if L has not disclosed anything)
Any time an L takes any action that may disadvantage another party, opposing counsel, or alter evidence, consider application of this duty.
Duty of fairness
They should state/identify how they are calculated, the general nature of the legal services, and the responsibilities of the lawyer and client.
Fee agreements
What are three primary ways in which conflicts of interest arise?
Conflicts between two or more clients
Conflicts between a client and a third party
Conflict between the client and the lawyer's own personal interests
Key words: Drafts document
L represents one party and drafts a document for someone involved with the other party
Use this to remember the ABA reasonable/California unconscionable fee factors.
TENTFLAW
Cal - additional factors - Furry Dogs Satisfy Anxious Clients
This is the process for which duty? First, discuss whether it is actual or potential. Next, identify corresponding ABA and CA rules.
Duty of loyalty/conflict of interest
Fee sharing with these is not allowed.
Nonlawyers
Explain conflict of interest.
A conflict of interest exists if there is a significant risk that the representation of the client will be materially limited by the lawyer's loyalty/responsibility to another client or former client.
Key words: Corporation board member
L is on the board and acts as its attorney
This duty applies to communications that could reasonably lead to the discovery of confidential information.
Duty of confidentiality
Compare to attorney-client privilege -- much narrower and only applies to those communications pertaining to legal services.
Must be in writing, signed by the client (CA requires agreement signed by L and client, and each have a copy), state the method by which it is calculated, including percentages in the event of settlement, trial, or appeal. State litigation and other expenses, and whether these are deducted before or after this fee is calculated.
Contingency fee agreements
Note: CA requires that agreement state that fee is negotiable (unless -- see health care provider)
Note: Many not enter into a contingency fee agreement in domestic relations (see narrow exception) or a criminal case.
This is permissible between lawyers if it is not exclusive and the client is informed of the agreement.
Referral fees between lawyers
What is imputed firm disqualification?
A conflict for one attorney in a firm is imputed to all other attorneys at the firm, resulting in their disqualification unless (see additional rules).
What are three other fact triggers?
L is friends with the client
L has a sexual relationship with the client or opposing counsel
L has an interest in the subject matter in which he is assisting the client or his interest is opposite the client's
What duties are implicated any time an attorney is newly admitted or being asked to practice in an area of law with which he is unfamiliar?
Duties of competence/care/diligence
Duty of loyalty
California requires a lawyer to submit to arbitration for these, whereas the ABA merely encourages it.
Fee disputes