what are the three common ways a defense attorney represents a client

by Evert Walter 10 min read

What are the rules for a lawyer's representation of a client?

Mar 31, 2020 · There is a caveat, a defense attorney with a client who has confessed cannot later allow any witness to testify to a fact they know to be false, that would apply to a defendant testifying at trial. It is nevertheless a common occurrence for a defendant to confess to an attorney that they are factually guilty, but later be found legally not guilty.

What kind of questions do defense attorneys ask?

Apr 05, 2012 · The lawyer also can't admit guilt against the client's wishes. Instead, the defense lawyer will focus their trial tactics and arguments on the government's failure to prove all the elements of the crime. Example: Sam is charged with shoplifting. Sam admits to his lawyer that he took a watch, as charged.

What is a defense attorney’s duty to the client?

Prosecuting attorneys represent the state in criminal cases. Defense attorneys, who may be privately retained or appointed, ensure that the defendant's rights are protected and defend their client throughout criminal proceedings.

What is the relationship between a lawyer and a client?

May 04, 2020 · The Attorney-Client privilege denotes a special relationship between the client and the attorney. This kind of relationship was introduced in Elizabethan England for three reasons. Firstly, lawyers can prepare a stronger case for the defense if …

What are the three types of defense counsel?

The Defense Attorney These fall into three broad categories: assigned counsel, contract systems, and public defenders.

How do lawyers represent clients?

As advocates, they represent one of the parties in criminal and civil trials by presenting evidence and arguing in court to support their client. As advisors, lawyers counsel their clients about their legal rights and obligations and suggest particular courses of action in business and personal matters.

What are three problems defense attorney's face?

Despite the potential for high pay and job autonomy, defense lawyers face a number of challenges in their roles, including negative public perception, demanding clients, overwhelming evidence, time demands and stress.

What is the duty of a defense lawyer to his client?

The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients' counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, ...

Can a lawyer represent a client in court?

(c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such ...

What are at least three common technologies and documents used within legal services?

Here are some of the most common technologies that are an integral part of the operation of a law firm:Word Processing, Spreadsheets and Presentation Software. ... Copy Machines, Electronic Scanner and Multi-Line Phone Systems. ... Document Management Systems. ... Conferencing. ... Electronic Case Filing. ... Electronic Discovery.More items...•May 19, 2017

What are the legal and ethical responsibilities of the defense attorney who represent clients in criminal cases?

The defense lawyer's duty to represent the defendant's interests is balanced by his duty to act in an ethical and professional manner. ... The defense lawyer has a duty to disclose any relevant laws or rulings to the court that are directly adverse to the defendant and that have not been disclosed by the prosecutor.Sep 26, 2012

Are defense attorneys immoral?

No. A defense lawyer who defends his or her client properly is neither immoral nor amoral in any way. They are performing a service that directly benefits society. Trials are as much about the process as they are about the outcome.Sep 1, 2019

Is it ethical for a lawyer to defend a guilty client?

Defense attorneys are ethically bound to zealously represent all clients, those whom they think will be justly found guilty as well as those whom they think are factually innocent. ... Instead, the lawyer uses the facts to put on the best defense possible and leaves the question of guilt to the judge or jury.

What is one of the most important tasks of defense attorneys?

First and foremost, the most important job of your criminal defense attorney is to fight for you and defend you in the court of law. According to the American Bar Association, the primary responsibility of a criminal defense attorney is to advocate for their clients and defend their rights.Jul 8, 2021

What are some other important functions duties roles of a defense attorney?

Defense Attorneys develop relationships with clients as they establish legal needs, provide counsel, help them understand their legal options. Defense Attorneys also conduct research, prepare legal documents, and perform other duties to ensure that clients receive the best and most cost-effective legal solutions.

What are the four responsibilities of lawyers?

DutiesAdvise and represent clients in courts, before government agencies, and in private legal matters.Communicate with their clients, colleagues, judges, and others involved in the case.Conduct research and analysis of legal problems.Interpret laws, rulings, and regulations for individuals and businesses.More items...•Sep 8, 2021

Does it matter if your lawyer thinks you committed the crime? It shouldn't

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Factual Versus Legal Guilt

The key is the difference between factual guilt (what the defendant actually did) and legal guilt (what a prosecutor can prove).

Your Lawyer's Opinion

Defense attorneys are ethically bound to zealously represent all clients, those whom they think will be justly found guilty as well as those whom they think are factually innocent.

What is the goal of a defense attorney?

The only goal of the defense attorney is to defend the accused, and they have to do so even if they know that the accused is guilty. The defense attorney is allowed to confuse the witnesses, and try to point out any weaknesses in the persecutor’s case.

What is attorney client privilege?

The Attorney-Client privilege denotes a special relationship between the client and the attorney.

What is the confidentiality rule?

Confidentiality rule is a principle that prevents a defense attorney from revealing information disclosed by the client for the sake of preparing the case for defense. Of course, this rule implies that there is no consent on the part of the client.

What is criminal law?

Available only on IvyPanda. Updated: May 4th, 2020. Criminal law obliges the state to enforce criminal justice in a society. It presupposes that most of the people will not commit a crime. If a crime is, nonetheless, committed, it is the duty of the state to investigate it, and punish the person who committed it.

What is the duty of a persecutor?

The duty of a persecutor is, therefore, to initiate a trial process against a person about whom there is a reason to believe that they have been involved in a crime. Persecutors have the burden of proof, which means that they are obliged to provide factual evidence for their claims.

What is the nature of an attorney-client relationship?

The nature of attorney-client relationship is such that the attorney is always in a position to better predict consequence of some actions, due to their training and experience. For the most part, clients are aware of this fact, and they usually agree with the attorney on the preferred course of action.

What is the purpose of paragraph A?

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4 (a) (1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4 (a) (2) and may take such action as is impliedly authorized to carry out the representation.

Why is limited representation appropriate?

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives.

What is limited representation?

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Can legal representation be denied?

[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.

Can a lawyer continue to assist a client?

A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16 (a). In some cases, withdrawal alone might be insufficient.

What is the rule of a lawyer?

Subject to rule 1.2.1, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably* consult with the client as to the means by which they are to be pursued. Subject to Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6, a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. Except as otherwise provided by law in a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Can a lawyer counsel a client?

A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows* is criminal, fraudulent,* or a violation of any law, rule, or ruling of a tribunal.*

What is the duty of undivided loyalty?

The duty of undivided loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed written consent.* Thus, absent consent, a lawyer may not act as an advocate in one matter against a person* the lawyer represents in some other matter, even when the matters are wholly unrelated. (See Flatt v. Superior Court (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537].) A directly adverse conflict under paragraph (a) can arise in a number of ways, for example, when: (i) a lawyer accepts representation of more than one client in a matter in which the interests of the clients actually conflict; (ii) a lawyer, while representing a client, accepts in another matter the representation of a person* who, in the first matter, is directly adverse to the lawyer’s client; or (iii) a lawyer accepts representation of a person* in a matter in which an opposing party is a client of the lawyer or the lawyer’s law firm.* Similarly, direct adversity can arise when a lawyer cross-examines a non-party witness who is the lawyer’s client in another matter, if the examination is likely to harm or embarrass the witness. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require informed written consent* of the respective clients.

Can a lawyer represent a client without written consent?

A lawyer shall not , without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

What is an other pecuniary interest?

[1] A lawyer has an “other pecuniary interest adverse to a client” within the meaning of this rule when the lawyer possesses a legal right to significantly impair or prejudice the client’s rights or interests without court action. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 68 [14 Cal.Rptr.3d 58]; see also Bus. & Prof. Code, § 6175.3 [Sale of financial products to elder or dependent adult clients; Disclosure]; Fam. Code, §§ 2033-2034 [Attorney lien on community real property].)However, this rule does not apply to a charging lien given to secure payment of a contingency fee. (See Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38 [108 Cal.Rptr.3d 455].)

Can a lawyer enter into a business transaction with a client?

lawyer shall not enter into a business transaction with a client, or knowingly* acquire an ownership, possessory, security or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:

What happens after a lawyer terminates a client relationship?

[1] After termination of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against the former client knowledge or information acquired by virtue of the previous relationship. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 [124 Cal.Rptr.3d 256]; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564 [15 P.2d 505].) For example, (i) a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client and (ii) a lawyer who has prosecuted an accused person* could not represent the accused in a subsequent civil action against the government concerning the same matter. (See also Bus. & Prof. Code, § 6131; 18 U.S.C. § 207(a).) These duties exist to preserve a client’s trust in the lawyer and to encourage the client’s candor in communications with the lawyer.

What are the principles of a lawyer?

General Principles. [1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts ...

Can a lawyer be paid from a co-client?

Interest of Person Paying for a Lawyer's Service. [13] A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8 (f).

What is a conflict of interest in a lawyer?

[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Can a client terminate a lawyer's representation?

[21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

What is informed consent?

[18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client . See Rule 1.0 (e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality).

Why is a lawyer asked to represent several individuals seeking to form a joint venture likely to be materially limited in

For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others.

Can a lawyer represent another person?

Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.

What is a lawyer?

Lawyers are stewards of their clients’ most sensitive and personal information. They serve as officers of the court and are in positions of public trust. But these high standards can lead to steep falls, and a lawyer who doesn’t carefully mind ethics obligations can quickly run afoul of the rules of professional responsi-bility.

Who said many lawyers unwittingly fall into the ethics trap of fee modifications?

Susan Saab Fortney: “Many lawyers unwittingly fall into the ethics trap of fee modifications.” Photos courtesy of the University of Arizona and Fordham University School of Law; photo by Chad Ballenger/Texas A&M University School of Law

Can lawyers push back on vendor practices?

Lamdan says lawyers can “push back on vendor practices that violate our ethics and … ask for assurances that these products don’t intermingle our work product or sensitive client data into their big data sales and collection services.” She provides the example of “asking Westlaw and Lexis to provide statements to lawyers promising that they will wall off their legal products from their data-brokering activities.” She notes that other services could expunge lawyer work-product data and take steps to ensure the data they do collect is encrypted and protected from data-gathering operations.

What is the ethics of model rule 1.5?

Model Rule 1.5 prohibits lawyers from charging unreasonable fees, and attempting to modify a fee arrangement with a client can pose an even bigger ethics issue.

What are the ethical traps of criminal law?

Green, a professor at Fordham University School of Law who writes regularly on ethics issues in criminal law, points to the problem of a lawyer interviewing a witness who later turns out to be hostile. “Criminal defense lawyers have a duty to investigate, which typically includes making an effort to interview witnesses.”

What is the most sacrosanct ethics principle in law?

Problem: Big data and confidentiality. Arguably, the most sacrosanct ethics principle in law is confidentiality —preserving inviolate attorney-client dialogue and work product. This becomes more complicated in the digital age and the era of big data.

What does Swisher say about lawyers?

Swisher says lawyers “should generally consult only with plausible clients, i.e., persons or entities with whom the lawyers are actually considering an attorney-client relationship.” He also recommends “well-written and well-placed disclaimers on websites” to avoid the problem of what he terms “accidental clients.” He also cautions that lawyers should “avoid the proverbial cocktail conversation or random phone call.”

Allocation of Authority Between Client and Lawyer

  • Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with th…
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Independence from Client's Views Or Activities

  • Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.
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Agreements Limiting Scope of Representation

  • The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriat…
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Criminal, Fraudulent and Prohibited Transactions

  • Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itsel…
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General Principles

  • Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see R…
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Identifying Conflicts of Interest: Directly Adverse

  • Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel …
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Identifying Conflicts of Interest: Material Limitation

  • Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely t…
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Lawyer's Responsibilities to Former Clients and Other Third Persons

  • In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor or corporate director.
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Personal Interest Conflicts

  • The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer…
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Interest of Person Paying For A Lawyer's Service

  • A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client wil…
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Prohibited Representations

  • Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When the lawyer is representing more than one client, the question of consentability m…
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Informed Consent

  • Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multipl…
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Consent Confirmed in Writing

  • Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit th…
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Revoking Consent

  • A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because …
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Competency

  • Problem: Understanding technology and protecting client data Arguably, a lawyer’s foremost duty is the duty of competency, outlined in Rule 1.1 of the ABA Model Rules of Professional Conduct. In 2012, Comment 8 to Rule 1.1 included the so-called technology clause, which provides: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law a…
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Billing

  • Problem: Fee shenanigans Many ethics problems arise from overcharging for legal services or other billing matters. Model Rule 1.5 prohibits lawyers from charging unreasonable fees, and attempting to modify a fee arrangement with a client can pose an even bigger ethics issue. “Many lawyers unwittingly fall into the ethics trap of fee modifications,” says professor Susan Saab For…
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Lawyer-Client Relationship

  • Problem: Creating an accidental client When lawyers communicate with people on webpages or other modes of communication, there is the potential for ethics problems if they’re not careful. While the lawyer assumes no lawyer-client relationship has been created, Keith Swisher, a legal ethics professor at the University of Arizona James E. Rogers College of Law, warns that some …
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Criminal Law

  • Problem: Potentially hostile witnesses There are some potentially thorny ethics traps for lawyers practicing criminal law. Bruce A. Green, a professor at Fordham University School of Law who writes regularly on ethics issues in criminal law, points to the problem of a lawyer interviewing a witness who later turns out to be hostile. “Criminal defense lawyers have a duty to investigate, w…
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Communication

  • Problem: Exaggerating credentials Some lawyers, in an effort to increase business, engage in puffery. A lawyer claims he has 20 years of experience, when in reality, he has had a law license for only seven years. A lawyer advertises himself as a seasoned courtroom litigator when he settles all his personal injury cases instead of taking them to trial. These exaggerations can run …
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Confidentiality

  • Problem: Big data and confidentiality Arguably, the most sacrosanct ethics principle in law is confidentiality—preserving inviolate attorney-client dialogue and work product. This becomes more complicated in the digital age and the era of big data. Sarah Lamdan, a professor at the City University of New York School of Law who writes about these issues, says: “One has to wonder …
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Lawyer Well-Being

  • Problem: Personal life affects professional life There are numerous ways a lawyer’s personal life might create problems. Lawyers sometimes face increased pressure to make more money, whether it’s to keep up with the Joneses or take care of family members. Practitioners facing financial stress may fall prey to addictive behaviors such as gambling or substance abuse. Suc…
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Conflicts of Interest

  • Problem: Lateral moves Perhaps the ultimate duty a lawyer owes a client is the duty of loyalty. That loyalty can be tested when lawyers switch firms. A lawyer from Firm A moves to Firm B. Firms A and B have lawyers on opposite sides of a very contentious case. The possibility exists that a conflict of interest can develop if there is not a sufficient screening system in place to det…
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