Distinguishing ABA/CA Rules Flashcards
What are the Divergent Issues Between ABA and CA model rules?
- Competence, 2. Conflict of Interest Triggers, 3. Loans to Client, 4. Joint Clients, 5. Various Fee Standards, 6. Confidentiality, 7. Reporting Up Client Organization, 8. Communication, 9. Termination Standards, 10. Malpractice Suits, 11. Candor in Testimony, 12. Lawyer as Witness, 13. Threat Rule (only CA), 14. Advertisements, 15. Solicitation, 16. Sale of Practice, 17. Grounds for Discipline, 18. Reporting Misconduct, 19. Unauthorized Practice of Law
What is ABA rule of competence?
Lawyer must have legal knowledge, skill thoroughness, preparation necessary to represent client.
What is the CA rule of competence
A lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services
What is the ABA rule for diligence?
A lawyer must act with reasonable diligence and promptness in representing client.
What is the CA rule for diligence?
Lawyer must not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing client
Is the duty of loyalty, regarding actual and potential conflicts of interest the same?
Somewhat.
Under ABA/CA, a lawyer must not accept or continue representation of client without informed written consent, for both actual and potential conflicts.
Under ABA a lawyer must have reasonable belief they can represent the client.
Under CA a lawyer must give written disclosure of the conflict.
*Under both ABA/CA a lawyer cannot represent a clients adverse to each other in substantially related matter.
What is the ABA/CA rule regarding sexual relations with clients?
Under ABA/CA a lawyer may not engage in sexual relationship with client, (even consensual), unless it preceded the relationship.
CA, also makes nuance for spouse/registered domestic partnership.
What similarities are there for advancing loans to clients under ABA/CA rules… what distinctions?
Under ABA/CA lawyer cannot provide financial assistance in connection with litigation, except for;
1) advancing litigation expenses (repayment may be contingent on outcome)
2) paying litigation expenses for indigent client.
*Under CA, lawyer may lend money to client for any purpose if client gives written promise to repay
What is the rule for fee amounts under ABA?
The fee must not be unreasonable.
Unreasonableness is calculated based on 1) novelty and difficulty of case, 2) time limitations, 3) nature of relationship, 4) skill of the attorney, and 5) if contingency
what is the rule for fee amounts under CA?
Fees cannot be unconscionable or illegal.
CA also factors in the amount in proportion to value of services, relative sophistication of attorney and client, client’s informed consent to fee
What is the ABA rule for fee agreements
Fee agreements “preferably” in writing, except for regularly represented clients for same rate.
What is the CA rule for fee agreements?
For non-contingency agreement cases, there must be a written agreement if fee amount is to exceed $1,000.
What commonality does ABA/CA have regarding fee agreements?
Contingency agreements must be in writing.
What is the rule for third party compensation under ABA rules?
Attorney may only accept compensation from something other than client if;
1) client gives informed consent,
2) there is no interference with lawyers independence of professional judgment or with attorney client relationship, and
3) client info is kept confidential
What is the rule for third party compensation under CA rules?
Same as ABA, except client must receive informed written consent. (stricter standard)
How are referral fees treated differently under ABA and CA rules?
Under ABA, referral fees are generally prohibited, except for nominal gifts.
Under CA, a “pure referral fee” is permitted to another lawyer. They may be compensated without involvement in the matter.
How is fee splitting distinguishable under ABA and CA rules?
Under ABA, fee splitting among lawyers is permitted if 1) the division is proportional to work done by each lawyer, 2) client agrees in writing, and 3) total fee is reasonable.
Under CA, fee splitting between lawyers are permitted, if 1) lawyers enter into a written agreement, 2) client gives written consent, and 3) the “total fee is not increased”
Under which authority can attorney have true retainer? What is a true retainer?
Under CA, lawyer may agree with client in writing to “non-refundable” fee to ensure lawyers availability
No true retainer under ABA
Under which authority, do clients have right to enter into arbitration regarding fee disputes?
Under CA rules, a client may elect arbitration of dispute of lawyers fees, unless agreed unwriting to mandatory arbitration
What is the rule regarding safekeeping property (funds), and is there any distinction between ABA/CA?
Under ABA/CA a lawyer must deposit funds into a trust account, and commingle to extent necessary to pay bank charges.
Under CA, a lawyer may deposit an advance flat fee into account with written disclosure to the client.
Is the duty of confidentiality the same under ABA/CA?
Yes, generally. But exceptions are different.
Rule - A lawyer must not reveal information relating to the representation of client without informed consent of client
What are the exceptions to confidentiality under ABA?
Lawyer must not reveal confidences unless lawyer reasonably believes necessary;
1) to prevent reasonably certain death or substantial bodily harm (same in CA)
2) to prevent crime/fraud likely to cause substantial financial harm,
3) to get ethics advice
4) in lawsuit against client (collect fees)
5) compelled by court order
What are the exceptions to confidentiality under CA rules?
Lawyer
