Intro; Atty-Client Relationship; Legal Fees Flashcards
Intro - Regulation of Lawyers
The Ohio Supreme Court egulates the practice of law and decides who can be admitted to practice.
- Applicants must demonstrate their good character and fitness to practice law.
- In seeking admission to the OH Bar, the burden of proof is on the applicant.
The Ohio Supreme Court also oversees attorney disciplinary matters for breaches in the OH Rules.
- This disciplinary power applies to actions that occur outside the practice of law.
Example 1: Attorney decides to sell his car. If he rolls back the odometer or lies about the car’s condition, he can be subject to discipline for such acts of dishonesty – even though these acts occur outside the practice of law.
Exam Tip 4: On the Bar Exam, look for dishonest acts of any sort – even ones that do not involve the practice of law.
Intro - Range of Sanctions
A range of sanction can be applied when an attorney must be disciplined.
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Least severe sanction: public repremand (e.g., in a legal opinion)
- Though other states allow private reprimands, OH does not.
- More severe sanctions: Suspension from practice, fines
- Most severe sanction: Permanent disbarment(i.e., license is revoked)
Intro - Sanctions for the Misconduct of Others
Peer Responsibility
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Reporting Rule: If an attorney knows that another attorney committed a violation of the OH Rules, the witnessing attorney is required to report the violation to disciplinary authorities.
- If the witnessing attorney fails to report the violation, he may be subject to disciplinary sanctions.
- Special OH Rule: Attorneys cannot make threats to report other attorneys for misconduct solely to gain advantage in a civil case.
Liability of Supervising Attorneys
- Supervising attorneys must make reasonable efforts to ensure that their supervisees comply with the OH Rules.
- A supervising attorney who (i) orders a subordinate to commit an act that violates the Rules or (ii) ratifies such violating conduct is subject to discipline.
Liability of Subordinate Attorneys
- Have an own duty to follow the OH Rules
- Even if a supervising attorney orders a subordinate to violate the Rules, the subordinate must still comply with the Rules.
Atty-Client Relationship - Formation
The relationship begins when the client reasonably believes the relationship exists.
- Look for: (i) An attorney has offered legal advice to a party; and (ii) that party reasonably relied on that advice.
- No need not be charged for representation.
- No formal writing or retainer agreement is required.
Example 2: Attorney-client relationships can begin very informally. Attorney and Guest meet at a party. Guest asks Attorney for legal advice; Attorney provides such advice and Guest follows that advice. Here, there is likely an attorney-client relationship, measured from client point of view.
Ask - Did Guest reasonably believe they were forming an attorney-client relationship? Did Guest reasonably rely on Attorney’s legal advice? If so,yes .
Atty-Client Relationship - Duties - Competent Representation
- Attorney need not be necessarily experienced
- Can gain competence though study, CLEs, and efforts to learn about the law
- Can gain competence through association with other counsel with more experience or competence
- If this is the case, the client must consent to this association.
Atty-Client Relationship - Duties - Breach of Duties to Clients
- Attorneys can face disciplinary proceedings or may be subject to malpractice liability in a civil case (not mutually exclusive)
Example 3: Attorney failed to file Client’s complaint within the statute of limitations period. This is a breach of the duty of competence, and Attorney will likely be subject to disciplinary sanctions. If Client was harmed by this breach, Client may bring a civil suit against Attorney for malpractice.
In a disciplinary proceeding, an agent of the state brings the complaint about an attorney’s conduct.
In a malpractice proceeding, a ________________ brings the complaint about an attorney’s conduct, as the client has suffered harm and seeks reimbursement for monetary damages.
- An attorney must disclose whether he/she has malpractice insurance.
Note 1: OH does not require attorneys to have malpractice insurance, but if an attorney does not have such insurance, a client must sign an acknowledgement about this disclosure.
Atty-Client Relationship - Duties - Duty of Diligence
Attorneys must:
- Return phone calls with reasonable promptness
- Communicate with clients about the status of the case, issues requiring decisions
Atty-Client Relationship - Scope of Representation
- Attorneys may limit the scope of representation as long as still providing diligent representation is provided.
Example 4: Attorney may limit the scope of Client’s representation to only intellectual property matters. Thus, Attorney can accept patent cases from Client, while refusing to represent Client in his divorce. This is a reasonable limitation.
An unreasonable limitation on the scope would be for Attorney to limit her representation to only 5 hours of work because this is all Client can afford (if the case will likely require more than 5 hours of legal work).
- Attorneys are expected to see matters through to completion.
- Decisions Made by Client
- Client decides whether to accept settlement offers
- Attorney communicates the offer and may provide advice, but the ultimate decision lies with the client.
- Decisions in Criminal Cases
- Whether to testify at trial
- Whether to waive a jury trial trial
- Whether to accept a guilt plea
- Client decides whether to accept settlement offers
Legal Fees - Setting Fees
General - total fee must be reasonable under the circumstances
- Can take into account:
- Time and skill required for the case
- Expertise and experience of the attorney
- Whether attorney must give up other employementto take the case
- Most fee agreements need not be in writing
- Exception: contingency fee cases (attorney only gets a fee contingent on the case outcome; typically a percentage of recovery)
- Must be in writing
- Must be signed by the client
- Must specify how the fee is calculated(including expenses and whether expenses are deducted before or after attorney’s fee is calculated)
- Contingency fees prohibited in (i) domestic relations cases and (ii) criminal defense cases
- Exception: contingency fee cases (attorney only gets a fee contingent on the case outcome; typically a percentage of recovery)
- Non-refundable fees are prohibited
- Retainers are permitted, but attorneys must return any funds that were not earned.
- Retainer funds must be kept in a separate trust account for the client; there can be no commingling of funds.
Exam Tip 5: Commingling of funds is a favorite topic of the Bar Examiners. Remember that attorneys cannot mix their own funds (operating or personal) with funds held in trust for a client.
Editor’s Note 1: While normally it is impermissible to commingle the lawyer’s own funds with funds in a client trust account, a lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on the account, but only in the amount necessary for such purpose.
Legal Fees - Division of Fees
- Within a firm: Fees can be divided in any way they choose
- Outside of the firm:
- referral fees are not allowed
- Work and/or responsibility for the case determines the proportion of the fee each attorney or firm receives
Example 5: Firm A agrees to take 30% of the responsibility and complete 30% of the work for a case. Firm A may receive ________ of the fee. Firm B agrees to complete 70% of the work, so Firm B may receive ________ of the fee.
- Client must consent to the fee arrangement
- The total fee must be reasonable for the services rendered.
- Client must consent to the fee arrangement
