3) starting the rship

Question 1

advertising: CA + MR

Answer 1

• -can’t be false or misleading (material misrep or omits fact nec to be not misleading)
• -ok advertise through any form
• -must have name/address. can’t be misleading name or imply rship w gvt

Question 2

advertising: CA only

Answer 2

• -no guarantees
• -no promises of quick settlements
• -must disclose dramatizations/spokesppl
• -contingency fees: must say that C rp for costs advanced

Question 3

fields of practice: CA + MR

Answer 3

• -ok say focus in a certain field

- -CA board of legal specialization – only then can say cerified specialist

Question 4

solicitation: CA + MR

Answer 4

• -no solicitation (in-person, phone, real-time electronic) unless prior rship
• -no solicitation if PC said dnw solicitation, or if coercision, duress, harassment
• -exception: ok if pecuniay gain not a motive

Question 5

solicitation: CA only

Answer 5

spl rule re no runners or cappers (agents who solicit)

Question 6

lawyer referrals: CA + MR

Answer 6

payment for recommending ‘s services can only be:

• -reasonable advertising costs
• -qualified lawyer referral service or legal service plan
• -selling you rpractice
• -referral agreements (nonexclusive)

Question 7

lawyer reerrals: CA only

Answer 7

• -ok give gifts (MR says nominal, CA does not) to show appreciation for the referral, but can’t be in expectation of future referrals/can’t be part ofagreement
• -C must consent in writing to the referral fee + can’t charge C more
• -“naked referral fees” – CA is one of few states that allows (referring L dn do work on the case) – encourage referral of cases outside area of competence

Question 8

fees: MR rule

Answer 8

no unreasonable fees

Question 9

fees: CA rule

Answer 9

no UNCONSCIONABLE fees

Question 10

unconscionable fees: def (CA)

Answer 10

• -L’s frud/overreach
• -L fail disclose material facts
• -amt of fee vs value of services provided
• -relative sophisticiation of L and C
• -difficulty/skill neeeded
• -will preclude other employment by L?
• -$ involved, results obtained
• -time limits from C or circs
• -nature of ongoing rship w C
• -experience, reputation, ability of L
• -fixed vs contingent
• -amt of time/work required
• -informed consent of C to fee

like contracts: unconscionability focus on both procedural + substantive

Question 11

communicating fees: CA

Answer 11

must be in writing! if reasoanbly foreseeable that total fees/expenses will be more than $1,000 in noncontingency fee cases

result if dn: k voidable at C’s option, and L can only collect reasonable fee

Question 12

CA: fee writing must contain

Answer 12

1) basis for compensation (hourly? flat? etc)
2) nature of legal services to b eprovided
3) responsibilities of L and C

Question 13

CA: fee writing: exceptions

Answer 13

• -emergency services
• -agreements implied by services of same general kind as have done w this C in the past
• -C waives, in writing, the fee writing
• -C is a corporation

Question 14

CA fee writing: contingency fees (+ exceptions)

Answer 14

needs to be in writing

EXCEPT:

• -worker’s comp
• -claims btwn merchants (re sales or loans) if merchant has 10 + ees

Question 15

contingency fees rules: CA

Answer 15

• -ok larger fees than usual to compensate for risk of non-recovery
• -NO contingency fees in divorce or crim cases
• -(but ok for post-judgment child or spousal support collections)

Question 16

flat fees: CA

Answer 16

CA only –> ok flat fees, + ok collect them in advance

Question 17

billing

Answer 17

must be clear re:
amount
rate
how calcluated

Question 18

retainer fees: CA

Answer 18

(CA only): ok keep true retainer fees (made merely to ensure availability of L) that are not compenstion for any work to be performed

Question 19

recovering unpaid fees

Answer 19

• -if C fires L: can recover them (k or quantum meruit)

- -if L voluntarily withdraws, can only get fees if withdrawal was ethically ok

Question 20

fee splitting: CA vs MR

Answer 20

MR: if divding fees btwn Ls not in same firm, must be proportional to services performed by each. Fee must be reasonable.

CA: does NOT need to be proportional

Question 21

fee splitting: CA adl rules

Answer 21

• -C agrees in writing to the arrangement
• -total fee must not be increased bc of fee division

if no agreement, L can recover in quantum meruit from the other L (but not fromt eh C)

Question 22

fee splitting with non-lawyers: CA + MR

Answer 22

can’t do it

• -exception: ok pay lawyer referral services
• -including nonlawyers in benefits programs
• -after death

Question 23

law corporations: CA

Answer 23

all the directors, shareholders, officers have to be licensed lawyers

Question 24

fee disputes; cA

Answer 24

if C sues for malpractice but owes fees, usu need separate lawsuit to collect the fees

Question 25

arbitration of fee disputes: CA

Answer 25

C must agree in writing for arbitration to be binding on C

• -if no agreement, voluntary for C, but mandatory for L
• -mediation always voluntary
• -no arbitration if SOL would bar civil suit
• -C can waive right to arbitration

Question 26

safekeeping of client funds/property: CA + MR

Answer 26

• -separate bank account “Trust Account”
• -w client’s consent could be outside CA (in a j w substantial rship to C)
• -safe deposit box or similar

Question 27

safekeeping of client funds: CA when ok put in L’s account

Answer 27

ok put in L's account if:
flat fee ( need C consent if more than $1,000)

Question 28

safekeeping C funds: CA: when ok comingle

Answer 28

• -to pay bank charges, or

- -funds belong in part to L and in part to C (unless dispute – then disputed portion must remain in trust acct)

Question 29

safekeeping of client funds: additional reqs: CA

Answer 29

1) promptly notify C of receipt of funds/property
2) identify + label physical property
3) keep records, + preserve for 5 years
4) account in writing to client
5) comply with any order for audit by state bar
6) promptly distribute anything undisputed to whoever it belongs to