L/C Relationship - Bottom Chunk (5) Flashcards
Fees
Amount of Lawyer’s Fees
Amount of Lawyer’s Fees (ABA v CA = reasonable)
Under the ABA rules, fees must be reasonable based on such factors such as time, difficulty of case, and expertise of the lawyer, degree of specialty required, preclusion of other work, amount of fee, the relationship with the client, and the results obtained.
Fees
General Fee Agreements
General Fee Agreements (same as “Amount of Lawyer’s Fees” rule for ABA + writing requirements in both jx)
A lawyer shall not charge or collect an unreasonable fee (in CA unconscionable [so exorbitant as to shock the conscience] or illegal).
- Written fee agreements are advisable under the ABA rules, AND
-
Mandatory in CA
-
unless
- the fee is $1k or less,
- the work is routine,
- the client is a corporation OR
- client waives the requirement for a writing.
-
unless
A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.
Fees
Contingency Fee Agreements
These agreements state the lawyer’s fees will be paid out of any recovery the client receives.
The agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted.
In CA, the writing must include how expenses not covered in the agreement will be charged, and that fees are not set by law and negotiable.
A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.
Fees
Fee Divisions Among Lawyers
Fees can be shared between lawyers not in the same firm if:
* (1) the division is proportionate to the service provided,
* (2) the client consents in writing,
* (3) total fees are reasonable.
In CA, in addition:
* (1) the fees cannot be increased because of the division, and
* (2) the fees aren’t unconscionable.
Fees
Sharing Legal fees with Non-Lawyer
Fees may not be shared, and a partnership may not be made with non-lawyers if any of their activities include the practice of law.
Fees
Referrals
In the ABA, a lawyer may not give anything of value to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients.
In CA, a referral fee can be paid if the client
* (1) consents in writing,
* (2) the fee does not increase costs to the client, and
* (3) not unconscionable.
Withdrawal - Mandatory
A lawyer must withdraw if:
* (1) discharged,
* (2) lawyer has a limiting physical or mental condition, OR
* ABA - materially impairs representation
* CA - makes representation unreasonably difficult
* (3) the representation will result in a violation of an ethics rule or other law.
In CA, if the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment. The lawyer must return unspent legal fees, notify the client and return their materials, and cannot hold materials pending payment.
In ABA and CA, rules require the lawyer to obtain court approval if they seek withdrawal after the action was filed.
In CA, a lawyer must withdraw if he knows or should know that a client is bringing an action without probable cause, for the purpose of harassing or maliciously injuring a person.
Withdrawal - Permissive
Under ABA rules, a lawyer may seek to withdraw if it can be done without materially harming the client.
If it will harm the client, a lawyer may only withdraw if
* (1) the client persists in crime or fraud,
* (2) lawyer learns previous services were used to perpetuate crime,
* (3) lawyer finds course of action repugnant,
* (4) client fails to pay,
* (5) representation will lead to a financial burden on the lawyer,
* (6) client has made representation unreasonably difficult, and
* (7) other good cause.
In CA, (2) and (5) don’t apply
Duty of Diligence
In the ABA, the duty of diligence requires promptness and diligence when representing a client.
In CA, a lawyer must not intentionally, gross negligently, recklessly, or repeatedly fail to act with diligence.
Duty of Competence and Care
A duty of competence and care requires legal knowledge, skill, preparation, and thoroughness when representing a client.
A lawyer may become competent by learning on his own before performance is due or he can become competent by associating himself with another lawyer in the field that has knowledge of the particularized area of law.
In CA, a lawyer must not intentionally, gross negligently, recklessly, or repeatedly fail to act with competence.
Duty to Safeguard Property
- A lawyer has a duty to safeguard the client’s property which means that he is not allowed to commingle funds or the property of the client with his own.
- A lawyer has to set up a client trust account and deposit any money received from the client in (IOLTA) account.
- He also has to keep an accounting record for 5 years.
- If the client gives the lawyer advance fees, he may only take the money out slowly as he earns it / expenses incurred.
- In CA, a flat fee paid in advance may be deposited in a lawyer’s operating account if a lawyer discloses to a client in writing that the client can require the fees to be deposited in a trust account until the fee is earned and the client is entitled to a refund of any amount not earned.
Duty to Safeguard Property - (After Representation Ends)
A lawyer must promptly pay the client any funds due once the representation ends. If the lawyer and the client have a dispute about the money owed once the case has settled, the lawyer has to keep the disputed portion in the account until the court resolves the dispute, but he may take the undisputed portion.
In CA, clients are allowed to have mandatory fee arbitration for fee disputes.
