PR Flashcards
Requirements for contingency fee agreement between attorney and client, when is it not allowed, and rule for advances
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
Attorney fees generally, any requirements?
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
Attorney’s duty to communicate
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
Lawyers duty of care and competence. How to gain competence
- 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
Lawyer’s duty to follow client’s instructions
L must abide by C’s decisions regarding objectives of representation, settlements, pleas, whether to testify, jury trial
Termination of representation of the client is mandatory if
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
Withdrawal from representation is permissive if
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]
What is a concurrent conflict of interest
(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
Attorney’s Duty of loyalty
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))
Attorney’s duty of confidentiality and exceptions
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
Attorney’s duty of candor to the court
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
attorneys’ duty to report misconduct
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
Lawyer’s duty of fairness to opposing counsel; California rule on threats
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
Lawyer’s referral agreements
[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
Fee splitting among lawyers
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
Advertising as an attorney and presumed violations
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
- [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
Solicitation by an attorney
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
Lawyer’s duty to witnesses
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
Attorney sexual relation with clients
[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.
L’s duty of loyalty
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
Lawyer limiting malpractice liablity
[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.
L’s duty of diligence
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)
What should a lawyer do when there is a fee dispute?
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.
Lawyer’s duty to a represented 3P
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
Lawyer’s duty to unrepresented 3P
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
When can a lawyer acquire a proprietary interest in C’s property?
Allowed as lien to secure fees, reas contingency fee. [CA] Not allowed
When can a Lawyer enter a bis transaction with a client?
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
When a lawyer has a conflict of interest, what are the imputed disqualifications?
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
Can a lawyer give loans/advances to C?
L cannot provide financial assistance to C in connection w/ litigation, except for contingency fees or an indigent C
- [CA] Same, plus L may lend money to C for any purpose if C gives written promise to repay
Duty of loyalty if a former client affects new client’s interest?
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
Can a L form a partnership with a non-lawyer if any activity of venture constitutes the practice of law
No.
when is a supervisor responsible for subordinate L’s misconduct? What about a NON lawyer?
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)
When is a subordinate Lawyer liable for misconduct?
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
Seven major ethical obligations of a lawyer
competence, loyalty, fees, confidentiality to the client, candor, fairness, decorum to court and opponent
(Clients love fierce counsel, courts feel differently)
criminal prosecutor’s duty to tribunal
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)
Lawyer’s duty to preserve decorum
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
Lawyer’s duty regarding extra judicial statements. special duties of prosecutor
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.
Factors to determine the [ABA] reasonableness or [CA] conscionability of lawyer fees
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]
