PC Flashcards
ERRANT PLANS
Reasonability of fees
- Experience
- Reputation
- Results
- Ability
- Novelty/difficulty
- Time and labor
- Precluded from other work
- Limits on rep
- Amounts involved
- Normal fees
- Skill required
Duty of confidentiality
Wider range of situations than A/C privilege
Exceptions:
- Client gives consent
- implied authorization - necessary to carry out rep
- mandatory disclosures (death, future crime, bodily harm)
-
permissive dislcosure
- client’s best interest
- A/C disputes
- compliance w/ RPC
- Conflicts of interest when lawyer changes firms/etc. (only if would not compromise A/C privilege or prejudice client)
Contingency fees
Recovery before answer/demand
- less than $1mm - 33.3%
- $1-2mm - 30%
- Over $2mm - 20%
Recovery after answer/demand
- less than $1mm - 40%
- $1-2mm - 30%
- over $2mm - 20%
Trial solely on damages
- up to $1mm - 33.3%
- $1-2mm - 20%
- over $2mm - 15%
Contingency fees - Med malpractice
- At least 75% of first $250k of all damages receivd (excl. reasonable & customary costs)
- 90% of all damages above $250k (excl. of same costs)
DRTH (of character)
Requires for character
- Diligence
- Reliability
- Trustworthiness
- Honesty
Mandator withdrawal
- Continuing rep will result in violation of law or RPC
- A’s physical/mental impairment (materially impairs)
- Discharged by C
- C persists in criminal/fraudulent course of action
- A’s services used to conduct crime/fraud
A/C privilege
- Testimonial privilege
- applies to confidential communication for purpose of giving legal advice
- only client can waive
- lasts indefinitely
Exceptions: future crime/fraud, disputes between A and C
Permissive withdrawal
(Withdrawal Caused by Unreasonable Repugnant MAE)
- nonpayment of fees after warned about withdrawal
- Unreasonable financial burden on A, or unreasonably difficult to rep C
- C wants course of action that A finds repugnant, imprudent, or fundamentally disagrees with
- No material adverse effect on C
- other good cause
Fee sharing
ESPN-B
- Estates (work done pre-death)
- Sale of practice (dead/disabled lawyer)
- pensions
- non-profit/pro bono legal services (court awarded fees)
- bonuses (to firm staff)
Special duties of prosecutor
- Can’t knowingly prosecute w/o PC
- can’t seek waiver of important pretrial rights from unrepresented accused
- Brady disclosures (Timely - info re: negation of guilt/mitigation of defense)
- Sentencing - disclose to defense/court unprotected mitigating info (unless under protective order)
Client trust accounts
- client funds
- client property
- 3P property
- 2+ people have interest (settlements)
- fee disputed funds
- advances (fees, costs, expenses)
IOTA - interest on short term funds from clients/3Ps must go to IOTA account –> payable to FL bar foundation
Duties to tribunal
- Correct false statements of material fact
- must correct false evidence
- Must refuse to offer false evidence
- may refuse to offer evidence reasonably believed to be false
- disclose controlling legal authority adverse to C’s position
- C can’t testify falsely
- reasonably try to correct false testimony
- provide material facts in ex parte proceedings
Requirements for admission
CAKE
- Character - good moral character
- Age - over 18
- Knowledge - pass bar exam
- Education (JD from accredited law school)
Non-lawyers
Non-lawyer can’t:
- own any interest (exception: wrapping up estate of deceased lawyer);
- be corporate director, officer, etc.
- direct/control lawyer’s professional judgment; or
- share fees
Communication w/ clients
Obligated to:
- keep client reasonably informed
- promply reply to requests for info
- convey all settlement matters promptly
When can a subordinate lawyer do what the supervising attorney order him to (and be okay later)?
When it’s reasoable resolution of an arguable question
Communication of fees
New clients: must community basis/rate, preferably in writing
Old clients: need not explain fees if in writing if there’s already basic understanding
Contingency fees
- in writing
- signed by C and A
- % that A takes for settlement, trial or appeal
- whether expenses deducted
Personal injury only - signed statement of C’s rights, and C gets a copy
Conflicts of interest
Unless consentable, L can’t represent client if
- representation is adverse to C
- material limits representation of client (includes another client, former client, 3P or personal interest)
Consentable conflict
L reasonably belivees he can provide
- competent and diligent representation
- rep isn’t prohibtied by law
- won’t have to assert position adverse to one client when there are 2+ in same proceeding
Consent needs to be in writing or on the record
Conflict against former clients
Representation materially adverse to prior client in same or substantially related matter prohibited w/o consnet
Informed consent cures, but still can’t use confidential info against prior client
Business transactions w/ clients
L needs
- written consent
- to advise in writing that C seek independent counsel
- transaction fair & reasonable
Also, can only take gifts from Cs who are related
Leaving old firms/ joining new firms
Can’t represent Cs if:
interests are materially adverse
same or substantially related matters
applicable lawyer has CI
Evidence
L can’t
obstruct access to evidence
alter/destroy evidence (or counsel someone else to)
fabricate evidnece (or counsel someone else to)
Loans to clients
No financial assistance to clients re: pending/contemplated litigation
- woudl encourage clients to pursue unwise lawsuits
- gives lawyers too great a financial stake in litigation
Advancing costs
Lawyer may advance court costs and liitgation expenses
Client remains ultimately responsible, but repayment can be contigent on case outcome
Substantially related matter
Same transaction or legal dispute OR
involves substantial risk that confidential info normally obtained in prior representation would material advance new C’s posiion
Third party paymnet
- C must give informed consent
- no interference w/ L’s independent professional judgment or C/L relationship
- info related to representation of C is protected as required by DOC
Representation of organization/corp
If L represents organization, not individual consistutents thereof, L must explain who client is to employees/etc. if L reasonably knows (or should) that client’s interests are adverse to constituents.
If L learns of illegal action by person w/i organization that could be imputed to organization and cause substantial injury, L must proceed in best interests of organization
Illegal activity by client
L prohibited from counseling/assisting C in conduct L knows (or should) is criminal or fraudulent => subject to crim and civil liability
but can still dsicuss legal consequences of proposed conduct
Excessive fees
Lawyer of ordinary prudence would be left w/ definite and firm conviction that fee exceeds reasonableness to a degree constituting clear overreaching/unconscionable demand
see ERRANT PLANS
Representing multiple clients
Consultation with clients must include explanation of implication of common representation - advantages and risks inovlved.
Need informed consent
