Fees Flashcards
Reasonable Fees
All fees must be reasonable considering the following factors (ABA):
a. Time limitations imposed by the client or circumstances
b. Experience, reputation, and ability of the lawyer, and
c. Nature and length of the relationship
d. Time and labor, novelty and difficulty, and skill required
e. Fee customarily charged in the locality for similar services
f. Likelihood that the acceptance will preclude other employment
g. Amount involved and results obtained
h. Whether the fee is fixed or contingency
CA: Fees may not be unconscionable based on the same factors of reasonableness for the ABA.
TENT FLAW
Fee Agreements Must State:
a. How the fee is charged
b. The general nature of the legal services
c. The responsibilities of the lawyer and the client
CA: Requires all fee agreements over $1,000 be in writing unless the client is a corporation, the agreement was made during an emergency, the client waives the writing requirement in writing, the services are for a previous client with similar services in which the fee can be implied.
Fee Arbitration
CA requires a lawyer to submit to arbitration for fee disputes, whereas the ABA only encourages it.
Contingency Fee Agreements
A contingency fee agreement, which is a fee agreement in which the fee is dependent on the outcome of the matter; must:
a. Be in writing
b. Be signed by the Client (CA signed by both A&C and both must have a copy)
c. Stated the method of how the fee is to be determined including percentage
d. State the litigation and other expenses to be deducted
e. State whether expenses are to be deducted before or after the contingent fee is calculated.
f. CA: The Agreement must state the fee is negotiable (unless the claim is for negligence against a health care provider)
g. No contingent fee in domestic relations- CA only if it does not promote divorce.
Division of Fees between Attorneys
Division of fees between lawyers who are not in the same firm may be made only if:
a. The division is proportionate to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation
b. The client agrees to the division and consents in writing, and
c. The total fee is reasonable
CA: Allows division between lawyers if the client consents in writing after full disclosure and the total fee is not unconscionable.
May “finder’s fees” be paid by attorneys?
A lawyer shall not give anything of value to a person for recommending the lawyer’s services unless it is a qualified referral service that has been approved by an appropriate regulatory authority.
Can California attorneys make gifts?
California rule allows a lawyer to make a gift of gratuity for a recommendation resulting in employment if the gift was not offered or given as consideration of a promise, agreement, or understanding that the referral would be forthcoming or continue in the future.
Are reciprocal referral agreements between lawyers permissible?
Yes, if it is not exclusive and the client is informed of the agreement.
Duty of competence/care
A lawyer shall represent the client with legal knowledge, skill, thoroughness, and preparation reasonably necessary
CA: includes diligence and mental, physical, and emotional ability
CA: allows a lawyer to associate or consult with another competent lawyer or acquire the necessary skills to become competent before performance is required.
Duty of diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Safekeeping property
A lawyer shall hold property of clients or 3rd persons connected with representation separate from the lawyer’s own property and must keep accounting records for five years.
Sexual relations with clients
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the lawyer-client relationship commenced.
CA: allows consensual sexual relations with client as long as the lawyer does not:
a. require or demand on condition of representation
b. Coerce, intimidate, or exert undue influence on client
c. Represent a client if the sexual relations cause the attorney to perform incompetently.
Mandatory Withdraw
A lawyer shall withdraw from representation if:
a. Representation will result in violation of rules of PR
b. Lawyer’s mental or physical condition materially impairs the lawyer’s ability to represent the client
c. The lawyer is discharged (ABA only)
d. CA: Requires withdrawal if the lawyer knows or should know that the client is bringing an action without probable cause or to harass or maliciously injure a person
Permissive withdrawal (ABA)
A lawyer may withdraw if:
- He can do so without material adverse affect on the interests of the client
- The client persists in action involving the lawyer’s services that the lawyer reasonably believes is fraudulent or criminal
- The client has used the lawyer’s services to perpetrate a crime or fraud,
- Client conduct repugnant to lawyer or fundamental disagreement
- Client fails to substantially fulfill obligation and has been given reasonable warning
- Representation will result in unreasonable financial burden on lawyer
- Other good cause exists
Permissive withdrawal (CA)
A lawyer may withdraw if:
- The client persists in action involving the lawyer’s services that the lawyer reasonably believes is fraudulent or criminal
- The client has used the lawyer’s services to perpetrate a crime or fraud,
- Client conduct repugnant to lawyer or fundamental disagreement
- Client fails to substantially fulfill obligation and has been given reasonable warning
- Other good cause exists
- Client insides on presenting claims/defenses that cannot be supported by good faith
- Client engages in conduct that makes it unreasonably difficult for the lawyer to represent him
- The lawyer is unable to work with co-counsel.
