PR Flashcards
CA Distinctions to know from MRs
A-C privilege and exceptions in CA
DOC and exceptions to DOC in CA
False testimony by C or W
Fees–distinctions b/t CA and MR
Duty of Subordinate As
MR/CA–Subordinate A must conform to the ethics rules even if acting under the direction of supervising A. But the subordinate A does NOT violate ethics rules if he acts in accordance w/ supervising A’s reasonable resolution of arguable Q of prof duty.
L-C Relationship
Formation and Duration
No duty to accept rep, BUT duty to decline if it would violate ethical rule.
CA–A must NOT rep C if he knows no prob cause to bring action and action brought to harass/injure D.
A must NOT present claim/defense NOT warranted under existing law unless it can be supported by a GF arg seeking change in law.
A-C rel beings when C reasonably believes rel exists–NO formal writing req.
Duration:
–MR–the attorney-client relationship lasts forever
–CA– the relationship terminates once the client has died and his estate has been settled.
Corp Cs–lasts until dissolution of company
L-C Relationship
Scope or Rel–Settlement/Strategy/Assisting C in Crim/Fraudulent Conduct
Settlement–only C has auth to decide to accept settlement. A MUST comm all bona fide offers of settlement to C–agreeing to settlement w/o C consent subj to discipline.
Strategy–A has auth to make decisions about strategy for achieving C’s objectives. A must reasonably consult w/ C on case.
CA–A must notify C about any written settlement offer in civil matter.
Crim/Fraudulent conduct–A MUST NOT counsel/assist C in such conduct, otherwise subj to discipline and crim or civil liability.
*However A may discuss w/ C the legal consequences of any proposed course of conduct that may be crim/fraudulent–but if C’s course of action has already begun and is continuing, then A req to avoid assisting C and MUST withdraw.
L-C Relationship
Termination of Rep–Mandatory Withdrawal
MR–A MUST withdraw if failure to do so would result in violating ethics rules (e.g. counseling/assisting in crime/fraud).
CA–A MUST withdraw if he knows/should know C is asserting claim/defense w/o prob cause and for purpose of harassing/injuring (e.g. destroying D’s business); also MUST withdraw if A’s physical/mental condition makes it unreasonably diff for him to rep C.
CA–A MUST withdraw if he knows/reasonably should know that rep would result in violation of CARPC–e.g. counseling in crime/fraud.
L-C Relationship
Termination of Rel–Permissive Withdrawal
MR–A may seek withdrawal from rep at any time w/o materially harming C. A may withdraw even if it will harm C if C engages in crime/fraud using A’s services or insists on action A finds repugnant or has made rep unreasonably difficult; may also withdraw if C fails to pay A’s fee.
CA–A NOT permitted to withdraw merely b/c it may be done w/o material harm to C. Rather A may seek to withdraw when :
(1) C used A services for crime/fraud in the past or seeks to pursue crime/fraud;
(2) Claim not warranted and no GF arg for changing law; and
(3) C makes it unreasonably difficult for A to carry out rep.
L-C Relationship
Terminating Rel–Procedure for withdrawal and duties upon term
Procedure–A must give C reasonable notice before withdrawing/litigation pending need ct approval/ct may still order A to continue rep C.
Duties upon Term
CA–A must return all papers/prop to C
MR–Can retain papers/prop in order to obtain payment in some circumstances; must return any advance fees not earned.
Fees–EMPHASIZE
MR–A must charge fees reasonable under circumstances.
CA–Fees must NOT be unconscionable; factors include (1) amt of fees in proportion to value of services perf; (2) time req to work on case; (3) difficulty of case; (4) A’s experience in the area of law.
*Informed consent of C can also be considered in determining whether unconscionable fee.
Fees > $1K must be in writing and signed by both Ps stating services; exception if C is corp.
Other CA exceptions:
1) if C waived in writing her right to written fee K;
2) A provided similar services to this C in the past; or
3) A provided services in an emergency
Contingent Fees
MR–not allowed in (1) crim cases or (2) domestic cases
CA–not allowed in crim cases BUT allowed in SOME domestic cases–i.e. post-judgment balances due under child or spousal support .
All CF agreements must be in writing–signed by C, terms of calc fees and expenses C liable for, otherwise agreement voidable and A just entitled to reasonable fee.
CA–must also be signed by A.
Fee Splitting
MR/CA–NO fee splitting w/ Non-As NOT associated w/ firm (i.e. can use fees to comp non-A staff in your firm).
As in same firm=As can split fees
As in diff firm:
MR–Allowed if fee proportional to services provides by each A; C agrees in writing and total fee is reasonable.
CA–Allowed if As enter into written agreement; C has provided written consent after full disclosure; and total fee not unconscionable.
MR/CA–total fees must not be higher b/c mult As working on case.
Referral Fees
MR–Cannot pay someone for rec A’s services unless (1) part of legal services plan or (2) approved A-referral service.
CA–A may give gift/gratuity for referral so long as gift/gratuity not offered in anticipation/as consideration for referral.
Partnerships
MR/CA–no partnerships w/ non-As if any activities include practice of law.
Payment from 3P
An A may not accept payment for rep from someone other than the C, unless:
(1) C gives informed consent;
(2) There is no interference w/ A’s prof judgement; and
(3) A-C confidentiality is preserved.
Employing Disbarred A
CA–A cannot employ disbarred A to perform legal practice. Can employ to perform clerical duties. A must also serve written notice of disbarred A’s employment to CA Bar and each C on whose specific matter ineligible person will work. Disbarred A can only perform legal work preparatory in nature–i.e. as long as A reviews then ok, but if A just blindly follows disbarred A then breach of duty to avoid assisting in unauth practice of law.
Unauthorized Practice of Law
MR/CA–An A must NOT knowingly assist a P who is not admitted to the Bar in the unauth practice of law.
E.g.–Disbarred A can sit during depo but cannot actively assist other than w/ clerical duties; disbarred A passing notes akin to asking Qs and tantamount to unauth practice of law.
Duty of Confidentiality and Exceptions (also applicable to prospective Cs)
A prohibited from disclosing any info relating to rep of C unless disclosure auth by informed consent of C or impliedly authorized in order to carry out rep.
A must take reasonable precautions to safeguard confidential info
Exceptions:
MR–allowed to disclose if reasonably certain sub financial harm will occur to another.
MR–allowed to disclose to prevent “reasonably certain” death/sub bodily harm (applies even if 3P commits act)
CA–allowed to disclose to prevent “crim act” that A reasonably believes will result in death/sub bodily harm (applies even if 3P commits act); BUT in CA need to make GF effort to persuade C NOT to commit crim act before revealing.
A-C Privilege and Exceptions
Confidential comms b/t C & A privileged:
(1) C must intend for comm to be confidential and
(2) Comm must be for purpose of seeking legal advice/rep (privilege also applies to reps of A when rep working at direction of A to obtain info from C).
MR–privilege indefinite and survives C (unless C waives).
CA–privilege terms when C’s estate is settled and personal rep discharged (unless C waives).
Exceptions:
D seeks A’s advice in furtherance of crime/fraud (regardless of whether A knows about illegal activity)–CA applies to act committed by anyone, NOT just C.
Death/sub bodily harm–CA no privilege if A reasonably believes disclosure nec to prevent crim act that A reasonably believes likely to result in death/sub bodily harm.
A dispute b/t co-Cs who are now adverse to each other allows for disclosure of conf. comms relevant to dispute.
