Chapter 12 Flashcards
Rule 1.5: Fees
Client-Lawyer Relationship
Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an ______ fee or an ______ amount for expenses.
unreasonable x 2
Rule 1.5: Fees
Client-Lawyer Relationship
Rule 1.5 Fees - What are the 7 (a) factors?
1) time/labor required, novelty/difficulty of ?, requisite skill
2) likelihood of L’s employment preclusion
3) customary charge for same service
4) amount involved/results obtained
5) C’s/circumstances time limitations
6) L’s experience, reputation, and ability
7) whether fixed/contingent
Rule 1.5: Fees
Client-Lawyer Relationship (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be ______ to the client, ___(3)____, before or within a ____ ___ after commencing the representation, except when the lawyer will charge a ___(3)___ on the same basis or rate.
communicated
preferably in writing
reasonable time
regularly represented client
Rule 1.5: Fees
Client-Lawyer Relationship (b) what else should be communicated to the client other than initial billing/fee?
Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
Rule 1.5: Fees
Client-Lawyer Relationship (c) [FIRST PART]
A fee may be __(7)____ for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a _____ signed by the client and shall state the _____ by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and ________.
contingent on the outcome of the matter
writing
method
whether such expenses are to be deducted before or after the contingent fee is calculated
Rule 1.5: Fees
Client-Lawyer Relationship (c) [SECOND PART]
The agreement must clearly ____(3)___ of any expenses for which the client will be liable whether or not the client is the _____ ____. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the ____(4)____ and, if there is a recovery, showing the ___(4)___ and the ___(4)____.
notify the client
prevailing party
outcome of the matter
remittance to the client
method of its determination
Rule 1.5: Fees
Client-Lawyer Relationship
(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in what two situations?
(1) Domestic relations (divorce, alimony, support, property settlement)
(2) criminal
Rule 1.5: Fees
Client-Lawyer Relationship
(e) A division of a fee between lawyers who are not in the same firm may be made only if what three things?
(1) services are proportional or each L assumes joint responsibility
(2) C agrees - written confirmation
(3) fee is reasonable
Rule 1.15: Safekeeping Property
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(a) a L should keep property
separate
Rule 1.15: Safekeeping Property
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(a) Funds should be maintained where?
in the state in which the L’s office is situated, or elsewhere by consent
Rule 1.15: Safekeeping Property
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(a) Complete records should be kept for how long?
5 years
Rule 1.15: Safekeeping Property
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of ___(4)___ on that account, but only in an amount ___(4)___.
paying bank service charges
necessary for that purpose
Rule 1.15: Safekeeping Property
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(c) A lawyer shall deposit into a client trust account ___(4)____ that have been paid in advance, to be withdrawn by the lawyer only as ___(6)____.
legal fees and expenses
fees are earned or expenses incurred
Rule 1.15: Safekeeping Property
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(d) Upon ____(5)___ in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
receiving funds or other property
ABA Standing Committee has said, “contingent fees for defense counsel in civil cases do not violate the Model Rules provided what? (3)
the amount saved is “reasonably ascertainable,”
The total fee is reasonable,
and the client’s consent is “fully informed.”
Rule 1.5: Fees
Client-Lawyer Relationship
(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in what two situations? [6] This provision does NOT preclude a contract for a contingent fee for legal representation in connection with the _____(5)___ under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.
recovery of post-judgment balances due
Rule 1.5: Fees
Client-Lawyer Relationship
(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in what two situations? [6] This provision does NOT preclude a contract for a contingent fee for legal representation in connection with the _____(5)___ under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.
recovery of post-judgment balances due
In Re Everett (Contingent). What can make a reasonable fee subsequently unreasonable?
Even if at the time of the CFA, subsequent developments may render collection of the fee unreasonable
In Re Everett (Contingent). When is a fee unreasonable?
- if the L gets unconscionable windfall under the totality of the circumstances
• ABA Opinon - 93-379
The right perspective is…
what the L ACTUALLY EARNED
What are some typical examples of fee abuses?
○ 1/3 contingent + not much work
○ L billing for work done by assistance
Law is harder on L who springs the high fee on the C w/ no warning after the work is done
Lodestar
number of hours worked x prevailing market rates
Re types of fees. Fee agreement must state that lawyer is entitled to what
statutory fees
1.5 states that fees must be reasonable, but what else must be reasonable?
expenses
In Re Sather (Fixed Fees) • L earns fees only by ___(4)_ or ____ _____ in exchange for the fee
conferring a benefit on
performing service
In Re Sather (Fixed Fees) Unless agreement expressly states fee is engagement retainer and how fee is earned upon receipt, the presumption is
that advance for specified legal service
In Re Sather (Fixed Fees) L cannot enter into ____ retainer or fee agreements because (1) circumstances can change (2) misleads client (3) deter from exercising right to refund unearned fees
“non-refundable”
