PR

Question 1

Requirements for contingency fee agreement between attorney and client, when is it not allowed, and rule for advances

Answer 1

Contingency fee must be IN WRITING, clearly state the method for calculating the fee, and identify if litigation expenses are to be deducted before or after the calculation of contingency fees

[CA] requires both parties to sign agreement. L must state the fee is negotiable

NOT allowed for criminal or domestic relation cases (divorce, determining alimony/support, property settlement)

L may advance litigation expenses to an indigent client and recover the expenses from the contingency fee

[CA] advances for living expenses OK if agreement in WRITING

Question 2

Attorney fees generally, any requirements?

Answer 2

Fees cannot be [ABA] “unreasonable” / [CA] “illegal or unconscionable”.

Factors include [CA: value of services, sophistication of attorney and client, client’s informed consent to fee]

[CA] fees over $1000 must be in writing unless client is corp and the legal service is the same kind performed previously

Question 3

Attorney’s duty to communicate

Answer 3

L has duty to reasonably communicate with a client and keep him informed of the status of the case so the client can make informed decisions

Question 4

Lawyers duty of care and competence. How to gain competence

Answer 4

• legal knowledge, skill, thoroughness and preparation reasonably necessary

[CA] L may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services
with competence. Competence includes a duty to supervise work of subordinate L and non-L employees

Competency cannot be waived

Exception:
- can learn as long as no undue delay to the case
- Can learn by associating with experienced attorney
- OK if it is an emergency to litigate

Question 5

Lawyer’s duty to follow client’s instructions

Answer 5

L must abide by C’s decisions regarding objectives of representation, settlements, pleas, whether to testify, jury trial

Question 6

Termination of representation of the client is mandatory if

Answer 6

If rep will result in
(1) violation of the rules or other law,
(2) L’s physical or mental
condition [ABA] materially impairs ability to represent client / [CA] renders it unreasonably difficult to carry out
representation effectively],
(3) L is discharged by C,
(4) [CA] frivolous litigation (L knows or reasonably should know C’s action is without probable cause and for purpose of harassing or maliciously injuring a person)

Very large dogs fight

Question 7

Withdrawal from representation is permissive if

Answer 7

Withdrawal is permissive if: C insists on taking action L considers repugnant or has fundamental disagreement with [CA: N/A], insists on pursuing criminal or fraudulent action, representation will be unreasonably difficult, C freely agrees to termination, or other good cause [CA: any of foregoing, or C
insists on action not warranted under existing law, or continued representation is likely to result in violation of these rules]

Question 8

What is a concurrent conflict of interest

Answer 8

(joint clients):
L cannot represent C if there’s a concurrent COI with another C, unless L reasonably believes he can competently and diligently represent both Cs + each affected client gives IWC

Question 9

Attorney’s Duty of loyalty

Answer 9

Loyalty – conflict of interest (COI):

L may not accept or continue representation of C if
(1) the representation is directly adverse to another C’s interests (“actual” COI);
(2) there is a “significant risk” that representation of C will
be materially limited by L’s responsibilities to another C or former C, or by personal interest of L (“potential” COI);

or [CA] (3) L has legal, business, financial, professional, or personal relationship w/ party or witness in same matter; UNLESS L obtains informed written consent (IWC) from Cs, or L reasonably believes he can competently and diligently represent each C (IWC and reasonable belief required for any of (1) – (3))

Question 10

Attorney’s duty of confidentiality and exceptions

Answer 10

Lawyer shall not reveal info relating to the representation of a client w/o informed consent

EXCEPT
- To prevent reasonably certain death or substantial bodily harm [CA] must be criminal act, and after dissuading C and informing C that info can be revealed)

n/a to [CA]
- prevent crime/fraud likely to cause substantial financial harm
- get ethics advice
- Suit against client (including to collect fees)
- Compelled by law or court order

Question 11

Attorney’s duty of candor to the court

Answer 11

L has a duty not to knowingly
(i) make a false statement of material fact or law, or fail to correct it,
(ii) offer false evidence (including from witness or client), or
(iii) fail to disclose controlling, directly adverse authority.

L may refuse to offer evidence he reasonably believes is false or disclose adverse facts

i. Testimony of criminal Δ: If L reasonably believes testimony will be false, must still allow Δ to testify
ii. False evidence: If L knows evidence will be false: Try to dissuade C, ask court to withdraw, or testify in
narrative. If this fails, disclose false evidence to tribunal as reasonably necessary [CA] unless confidential

Question 12

attorneys’ duty to report misconduct

Answer 12

If L knows of another L’s violation of rules ([CA] criminal act under CA law or conduct involving dishonesty, fraud, deceit, reckless/intentional misrepresentation, or misappropriation of funds) that raises substantial question as to honesty, trustworthiness, or fitness as lawyer, L must report to authority ([CA] State Bar)

i. EXCEPTION: No obligation to report if misconduct learned through confidentiality or privilege
ii. [CA] Self-reporting required if sanctions > $1k, 3 suits were filed v. L w/in 1 year, or facing felony charges

Question 13

Lawyer’s duty of fairness to opposing counsel; California rule on threats

Answer 13

L may not engage in dishonest conduct or trick the opposing party

L may not tamper with evidence
L must produce incriminating evidence received from C (but can not disclose source)
L must stop reading confidential doc if inadvertently received
L must reasonably expedite litigation

[CA] prohibits L from threatening to present criminal, administrative, or disciplinary charges to obtain an unfair advantage in a civil dispute

Question 14

Lawyer’s referral agreements

Answer 14

[ABA] generally prohibited (except nominal gifts not excepted to be consideration)

[CA] referral fee ok if:
1. does not increase the total fee paid by client
2. IWC
3. fee is not unconscionable

[CA] “Pure referral gift” (not given as consideration) OK

Question 15

Fee splitting among lawyers

Answer 15

division of fees between L NOT in the same firm OK:

[ABA] only if the division is proportionate, the client consents in writing, and the total fee is reasonable

[CA] only if written agreement between L to divide fee, disclosure to client about the identity of Ls and division terms, client consents in writing, and total fee is not increased by the division

Question 16

Advertising as an attorney and presumed violations

Answer 16

Advertising must not be false or misleading

i. Presumed violations:
a. Communication delivered to potential C in a time of physical/mental stress/accident scene/hospital –> presumed to be false and misleading
b. omitting a necessary fact;
c. stating past result without disclaimer

1. [CA] Presumed violations:
   Testimonials (unless disclaimer)
   guarantees,
   predictions,
   implied affiliations

ii. L can only claim to be specialist if he is certified

iii. Mailings seeking fee-paying work must be clearly labeled as advertisements

Question 17

Solicitation by an attorney

Answer 17

A lawyer may not conduct in person, live telephone, or real time electronic contact.

UNLESS person contacted a lawyer, or has family, close personal, or prior professional relationship with L

Question 18

Lawyer’s duty to witnesses

Answer 18

L may not pay W for his testimony BUT L may provide reasonable expenses, reasonable lost wages, reasonable expert witness fees, but these compensations cannot be contingent on content of testimony

Question 19

Attorney sexual relation with clients

Answer 19

[ABA] L cannot have sexual relations with a client unless a consensual sexual relationship existed before AC relationship commenced
[CA] L is prohibited from coercing or
otherwise unduly influencing a client into sexual relations.

Question 20

L’s duty of loyalty

Answer 20

L may not accept or continue representation of C if

(1) the representation is directly adverse to another C’s interests (“actual” COI);

(2) there is a “significant risk” that representation of C will
be materially limited by L’s responsibilities to another C or former C, or by personal interest of L (“potential” COI);
or

[CA] (3) L has legal, business, financial, professional, or personal relationship w/ party or witness in same matter;

UNLESS L obtains informed written consent (IWC) from Cs AND L reasonably believes he can competently and diligently represent each C

Question 21

Lawyer limiting malpractice liablity

Answer 21

[ABA].L may not agree to limit her malpractice liability to C UNLESS L advises C in writing to seek Independent Legal Counsel

[CA] L may not agree to limit her malpractice liability.

Question 22

L’s duty of diligence

Answer 22

L must act with reasonable diligence and promptness in representing C

[CA] L may not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing C (“reasonable diligence” is commitment and dedication to C’s interests)

Question 23

What should a lawyer do when there is a fee dispute?

Answer 23

when there is a fee dispute with a client, the lawyer must send undisputed portion to the client promptly and keep disputed portion in client trust account until dispute is resolved.

Question 24

Lawyer’s duty to a represented 3P

Answer 24

May not communicate UNLESS, 3P’s counsel consented

and L does not intend to embarrass, delay or burden 3P; or legally authorized

if 3P is org, org’s counsel must grant permission before L communicates with

(1) one who supervises or consults with org’s lawyers
(2) persons with authority to obligate org
(3) the whose conduct may be imputed to the org

Question 25

Lawyer’s duty to unrepresented 3P

Answer 25

L may communicate with 3P only if L does not imply impartiality, explains role if necessary, and does not give advice other than to get counsel if L knows C’s interests have reasonable chance of being adverse to 3P

Question 26

When can a lawyer acquire a proprietary interest in C’s property?

Answer 26

Allowed as lien to secure fees, reas contingency fee. [CA] Not allowed

Question 27

When can a Lawyer enter a bis transaction with a client?

Answer 27

L must not enter a biz transaction with C UNLESS
1) terms are fair and reasonable to C and fully disclosed in writing,
2) C advised in writing to seek counsel,
3) informed consent in writing by C

Question 28

When a lawyer has a conflict of interest, what are the imputed disqualifications?

Answer 28

Imputed disqualifications:
One L’s COI disqualifies entire firm L is associated with, UNLESS it’s
1) due to L’s personal interest,
2) L is screened from participation in subject matter of former representation, given no fee, and former C notified in writing, or
3) L is leaving the firm

Question 29

Can a lawyer give loans/advances to C?

Answer 29

L cannot provide financial assistance to C in connection w/ litigation, except for contingency fees or an indigent C

1. [CA] Same, plus L may lend money to C for any purpose if C gives written promise to repay

Question 30

Duty of loyalty if a former client affects new client’s interest?

Answer 30

Former clients: If relationship w/ former C will “substantially affect” relationship w/ new C, must give written disclosure to new C.

“Substantially affect”: Law or facts overlap, or confidences of one would hurt one to help another

Question 31

Can a L form a partnership with a non-lawyer if any activity of venture constitutes the practice of law

Answer 31

No.

Question 32

when is a supervisor responsible for subordinate L’s misconduct? What about a NON lawyer?

Answer 32

A supervisory attorney over a NON-lawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer

Supervisor is liable if he 1) orders misconduct, 2) ratifies misconduct or 3) fails to remedy (stop, prevent, dissuade)

Question 33

When is a subordinate Lawyer liable for misconduct?

Answer 33

Subordinate L is not protected from discipline, unless following supervisor’s directions that were a reasonable resolution of an arguable question of PR ethics. If supervisor is patently wrong, no protection

Question 34

Seven major ethical obligations of a lawyer

Answer 34

competence, loyalty, fees, confidentiality to the client, candor, fairness, decorum to court and opponent

(Clients love fierce counsel, courts feel differently)

Question 35

criminal prosecutor’s duty to tribunal

Answer 35

PRIME duty

Must have Probable cause to bring charges,
make reasonable efforts to protect Δ’s Right to counsel,
Impartiality: refrain from and prevent law enforcement from extrajudicial comments biased against Δ,
disclose Mitigating evidence to Δ, and

[CA] when prosecutor knows of new evidence creating reasonable likelihood that Δ did not commit the offense,
promptly disclose to court (if conviction was obtained in prosecutor’s jurisdiction, promptly disclose evidence to Δ)

Question 36

Lawyer’s duty to preserve decorum

Answer 36

L may not communicate ex parts (w/o presence or knowledge of opposing counsel) with or gift a judge (except campaign contributions).

L may not communicate with jurors during proceedings, seek to influence jurors, or harass jurors

Question 37

Lawyer’s duty regarding extra judicial statements. special duties of prosecutor

Answer 37

L may not make media statement if there is a substantial likelihood it will result in material prejudice

A prosecutor must not broadcast or allow to be broadcast a statement that expresses an opinion regarding the guilt or innocence of a criminal defendant. Has duty to make reasonable efforts to prevent law enforcement from making such statements too.

Question 38

Factors to determine the [ABA] reasonableness or [CA] conscionability of lawyer fees

Answer 38

Factors include novelty and difficulty of legal issues, time limitation, nature of relationship w/ client, experience, contingency,

[CA: amount in proportion to value of services, relative sophistication of attorney and client, client’s informed consent to fee]