Cases Flashcards
In the Matter of Fordham
Rule 1.5 - Fees
Experienced attorney with no experience in OUI cases bills 227 hours. Court finds excessive.
Objective Standard - The test is whether the fee ‘charged’ is clearly excessive, not whether the fee is accepted as valid or acquiesced in by the client.
(BUT - Rule 1.5 does contain subjective factors)
Brobeck
Rule 1.5 - Fees
Contract for Contingent Fees - where a K is fair determined with reference to time when contract was made.
Contract must be so “unconscionable that no man in his senses & not under delusion would make, and as no honest and fair man would accept” to be invalid.
Goldfarb v. Virginia State Bar
Fixed Minimum Fees - Fee Schedule
Although fees “recommended,” effectively a rigid price floor enforced by State Bar via professional discipline.
Learned professions are “trade or commerce” and subject to antitrust regulation.
(Pepper agrees b/c of 1st amendment)
Bates v. State Bar of Arizona
Advertising
Advertised rates for routine legal services
Outcome: Court says OK to advertise (Pepper agrees because of 1st amendment)
Powell Dissent: Inherently misleading nature - additional costs inevitable. Laymen do not have a clue about what they should/are receiving
O’Connor Dissent: Professional standards are in constant struggle with exploitation for economic gain. Allowing price fixing is demoralizing to the profession. Legal not like any other trade.
Rule 7.2(a)
Rule 7.1
Ohralik v. Ohio State Bar
Solicitation
Took advantage of two young car wreck victims. sought out person, secretly recorded consent.
Prosecuted for solicitation, not rule violations.
Outcome: solicitation not protected by 1st amendment
In-person solicitation can be prohibited because attorney’s presence allows possibility of overbearing or overreaching.
Rule 7.3
Shapero v. Kentucky Bar Association
Solicitation
Supreme Court invalidated Kentucky rule that barred lawyers from sending letters to people known to need legal services
Not the same as in-person because amount of potential coercion much less.
Rule 7.3
In re primus
Attorney sent letter to mother that had been sterilized, informing her that ACLU would offer free representation. Reprimanded for “solicitation in violation of canon of ethics”
Court: reverses - letter constitutionally protected. Motive not pecuniary.
Concurrence: Ohralik and Primus at opposite ends
Questions ban on attorney solicitation due to fact that big firms drafted rules to fall heavily upon smaller, perhaps recently immigrated lawyers.
Pautler
Rule 4.3 - Communication with Unrepresented Persons
DA misrepresents himself as a public defender
1) Noble motives do not warrant departure from rules of professional conduct -> a fortiori for DAs
2) When presented with choices, attorney must not select option which involves deceipt or misrepresenation in violation of 8.4(c).
3) DA required to state he was representing the government and could not state or imply he was disinterested - 4.3
Parsons v. Continental
Client Loyalty - Joint Clients - Rule 1.7 - Insurance Carriers (p. 83 supp.)
Issue: insurance carrier denied coverage using confidential information acquired by carrier’s attorney in representation of insured.
Court: attorney owes undivided fidelity to the insured and may not reveal information which may be detrimental to insured in subsequent actions.
Better practice is to not assume that the insurance company is a joint client and to get that cleared up and consented to at the beginning. But, the insurance company may not hire you if you do not treat them as joint client
Current trend- Insurance Companies limiting the Number of Depositions a lawyer can take or limiting time they can spend working on something.
Strickland v. Washington
Rule 1.1 - Competence (Criminal) - (p. 303)
To establish a claim of ineffective assistance of counsel, a defendant must show two things:
1. Attorney’s performance fell below the minimum standard guaranteed by the Sixth Amendment - not function as counsel
2. A reasonable probability that the deficient performance prejudiced the client
Togstad v. Vesely
Formation of Lawyer Client Relationship (p. 286)
Wife whose husband had a malpractice claim met with attorney for 45 minutes and was advised - no case. Will followup. Never did. Statute of limitations passed.
Court: Existence of a client lawyer relationship is determined by the reasonable perception of the would-be client. Don’t need meeting of the minds, contract, or fee changing hands, to form a client-attorney relationship.
Nix v. Whiteside
Truth & Falsity in litigation - Rule 3.3(a)(3) (p. 658)
An attorney is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law, and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand.
BUT May present evidence about which he is unsure - problem of deliberate ignorance.
State v. Olwell
Duty to Produce Evidence - Rule 3.4(a)- (p. 686)
Attorney came into possession of defendant/client’s knife and held onto it too long.
Court: Attorneys can hold onto evidence for a reasonable amount of time to examine, but then should turn it over to to the prosecution voluntarily.
In re Ryder
Duty to Produce Evidence - Rule 3.4(a) (p. 687)
Concealed evidence, shotgun and marked bills, to prevent client from disposing of it.
Court: barred from practicing because concealed evidence - motive irrelevant - became accessory after the fact.
People v. Meredith
Duty to Produce Evidence - Rule 3.4(a) (p. 688)
Defendant appealed conviction because former lawyer found piece of evidence, wallet, and turned it over to prosecutor. Felt it was violation of attorney-client privilege.
Court: Not a violation, only way to determine location was through investigator who located wallet.
