ABA / CA Distinctions Flashcards
Fee Agreements
ABA
Prefers to be in writing. Fees must be reasonable.
CA Rules
Must be in writing if over $1,000 subject to a few exceptions (emergency, corp, previous client).
Fee cannot be unconscionable
Contingency Fee Agreement
ABA
A contingent fee agreement must be in writing and shall state the percentage that the lawyer is to receive when the case is settled and whether expenses are to be deducted before or after the contingent fee is calculated.
CA
California rule is the same but also requires the agreement to state that the fee is negotiable.
Fee Sharing
ABA
A lawyer may share legal fees with an outside attorney only if the fee is in proportion to the services performed by each lawyer; the client consents in writing; and the total fee is reasonable.
California does not require proportionality when two lawyers share a fee. Total fee charged must not increase because of sharing fees, and total fee must not be unconscionable.
Duty of Confidentiality
ABA
Provides an exception where the lawyer may reveal confidential information to prevent the client from committing a future crime that is likely to cause a person substantial financial loss.
California has no exception for financial crimes.
Conflicts of Interest
ABA
Whenever there is a conflict, a lawyer may still represent a client if the lawyer reasonably believes that he will be able to provide competent and diligent representation and each client gives informed written consent.
California does not have a reasonable lawyer standard. An attorney in CA simply has to provide written disclosure to the client when there is a conflict.
Financial Assistance to Client
ABA
A lawyer may only advance litigation expenses.
In California, a lawyer may loan the client money after the lawyer is hired provided the agreement is in writing.
Accepting Payment from a Third Party
ABA
This is proper so long as the client gives informed consent and there is no interference with the lawyers independent professional judgment
California also requires the lawyer to obtain the client’s informed “written” consent.
Corporation as Client
ABA
A lawyer may report a violation outside of the organization without breaching the duty of confidentiality.
California prohibits outside reporting. California has strict confidentiality requirements.
Offering False Testimony of a Criminal Defendant
ABA
If a criminal defendant intends to testify falsely, the lawyer must refuse to offer the testimony.
CA
A lawyer may not refuse to offer the false testimony of a criminal defendant, but must let the defendant testify in the narrative.
Reporting Professional Misconduct
ABA
A lawyer must report the professional misconduct of another attorney when that attorney has committed a serious ethical violation.
In certain situations, a lawyer in California is required to report himself to the state Bar.
