PR Flashcards
CREATING THE LAWYER-CLIENT RELATIONSHIP
1) Lawyer client relationship begins when the client reasonably believes the relationship exists.
2) A written agreement is not required.
3) The lawyer’s perception is irrelevant.
4) Absent a court appointment, a lawyer doesn’t have to accept representation of a client.
DECISION MAKING
1) Lawyer - determines the means such as strategy and methods.
2) Client - determines the end, such as goals and objectives of representation.
COMMUNICATION
1) Lawyer must reasonably consult with the client about the means of representation.
2) CA - must notify client about any offer to plea bargain - criminal matter and any written settlement offer - civil matter.
a. Must communicate an oral offer in a civil matter if it’s a significant development.
WITHDRAWAL OVER DISAGREEMENTS
May withdraw over a fundamental disagreement as to appropriate strategy. CA if it makes representation unreasonably difficult.
ADVISING CLIENT ABOUT CRIMES OR FRAUD
1) May not advise or assist the client in conduct they know is criminal or fraudulent.
2) In CA is prohibited from counselling or assisting the client in conduct they know violate any law, rule or ruling of a tribunal.
3) May discuss the legal consequences of a proposed course of conduct.
4) If the legality of the conduct is unclear, the lawyer may take steps in good faith to determine the validity, scope, meaning or application of the law.
MANDATORY WITHDRAWAL
1) Representation will result in a violation of an ethical rule and under the ABA, any other law.
a. If it’s merely likely to result in a violation, withdrawal is permitted but not required.
b. CA - limits the grounds to violation of an ethical rule
2) Lawyer’s health makes it unreasonably difficult to represent. ABA - materially appears.
a. If lawyer’s health makes representation merely difficult, withdrawal is permitted but not required.
3) Fired by the client, unless ordered to continue by the court.
4) CA: When lawyer knows or should know client is making a claim without probable cause to harass or maliciously injure another.
PERMISSIVE WITHDRAWAL
1) Crime/Fraud
a. Client seeks to perpetrate a crime/fraud; or
b. Client has already used lawyer services to commit a crime/fraud; or
c. Client insists that the lawyer pursue conduct that is a crime/fraud.
i. Lawyer learns of ongoing criminal/fraudulent activity, lawyer may withdraw.
ii. Must withdraw if continuing representation would assist client in crime/fraud.
2) Client breaches a material term of the lawyer services agreement, if lawyer gives a reasonable warning before withdrawing.
3) Client’s conduct makes representation unreasonably difficult.
4) Other good causes exist
5) ABA – Additional grounds
a. For any reason, if there will be no material adverse effect on client.
b. If representation will cause an unreasonable financial burden on the lawyer; or
c. Client insists on a course of action that lawyer finds repugnant or has a fundamental disagreement.
6) CA – Additional Grounds
a. Inability to work with Co-counsel if withdrawal is the best interest of the client; or
b. Client insists on asserting an unwarranted claim/defense, and without good faith argument for laws, extension, modification or reversal.
RESPONSIBILITIES UPON TERMINATION
1) Lawyer must give client reasonable notice and allow time to find other counsel.
2) Lawyer must take reasonable steps to mitigate harm to client and return all client property reasonably necessary to representation.
a. CA - lawyer must return all client papers and property, regardless of if client paid
b. ABA - Lawyer must return all papers and property to which the client is entitled.
3) Recovery/Refund fees - The lawyer may:
a. Recover fees for the value of services rendered but must return any unearned fees.
b. May keep a true retainer paid to ensure the lawyer’s availability.
FEE AMOUNT
1) ABA - Lawyer may not charge an unreasonable fee.
2) CA: Prohibits an unconscionable fee.
3) FACTORS
a. Time and labor required.
b. Novelty and difficulty of the case.
c. Likelihood the lawyer will have to forego other employment.
d. Amount of work involved and the results obtained.
e. Time limitation imposed.
f. Nature and length of the relationship with the client.
g. Whether the fee is fixed or contingent.
h. The experience, reputation, and ability of the lawyer.
4) ABA: Consider the fee customarily charged in the locality and community.
5) CA: There are additional factors:
a. Whether lawyer engaged in fraud or overreaching in setting the fee.
b. Whether lawyer has failed to disclose material facts.
c. Relative sophistication of lawyer and client in setting fee.
d. Amount of the fee in proportion to the value of service performed.
e. Whether client gave informed consent to the fee.
WRITING REQUIREMENT – CA only, ABA prefers by not require
1) Fee agreement must be in writing if the fee will exceed $1000 and a copy provided to client.
2) Writing must include 1) nature of services 2) responsibilities of parties 3) basis of compensation.
3) A written contract is not required when: (CHEW)
a. Client is a corporation.
b. History of similar services provided to the client in the past.
c. Emergency.
d. Client waives in writing the right to a written fee contract.
CONTINGENT FEE AGREEMENTS
A fee paid upon the lawyer’s achievement of a particular outcome for the client.
1) Must be in writing and signed by the client. CA - also be signed by the lawyer.
2) Required contents:
a. The basis for calculating the fee.
b. Clients liability for costs and expenses; and
c. Whether expenses will be deducted before or after the contingent fee is calculated
d. CA also requires:
i. It states the fact that lawyers fee is negotiable.
ii. If client will pay lawyer for related matters not covered by arrangement.
3) Failure to Comply (CA): arrangement is voidable but lawyer may collect a reasonable fee.
4) Prohibited in criminal matters and domestic cases when the fee is contingent on obtaining divorce or on the amount of support recovered.
FEE-SPLITTING
LAWYERS FROM DIFFERENT FIRMS
1) Lawyer may share fees with another lawyer if:
a. client consents in writing after disclosure of the terms of the agreement and
b. total fee is not increased due to the fee splitting.
2) ABA – Fee-split must be in proportion to the services of each lawyer
3) CA – The lawyer must:
a. Enter into a written agreement at or about the time of the client’s consent; and
b. Provide full written disclosure that includes the identity of the lawyers.
WITH A NON-LAWYER - Fees may not be split with non lawyers
REFERRAL FEES.
1) ABA - lawyer may not give anything of value to a person for recommending lawyer.
2) CA - may give gift after recommendation is made but nothing to secure it recommendation.
3) Exception - Unless paying the fees of legal Service plan or approved referral service.
DUTY TO SEGREGATE AND SAFEGUARD CLIENT FUNDS
SEGREGATE
1) Lawyer must keep client property and funds separate from their own.
a. Upon a dispute, the disputed portion must be kept separate and must not be withdrawn until the dispute is resolved.
2) Exceptions - A deposit into the lawyer’s account of an advanced flat fee is allowed if:
a. Client gets a written disclosure (signed if over $1,000), which states:
i. They have the right to have the fee placed in a trust account until earned and;
ii. are entitled to a refund of any amount not earned.
3) Lawyer funds may be deposited into the trust account to pay or avoid bank charges.
4) Any award belonging to both the lawyer and the client can be deposited into the client trust account if it is promptly dispersed to the lawyer and client.
COMMUNICATION - Lawyer must provide timely notice when they receive funds/property that the client or a third party has an interest. CA – notify client within 14 days.
SAFEGUARD - lawyer must safeguard funds, securities or property of a client or third party and pay or deliver the items to which the client is entitled upon request.
RECORDKEEPING
1) The lawyer must keep a client Ledger and provide an accounting.
2) Records must be maintained for five years after the close of the client’s case.
