PR Flashcards
Acceptance
A lawyer has no duty to accept representation of a client, absent a court appointment.
Rejection
MR: L must reject representation of a client if it would violate the rules or physical or mental condition would impair representation.
CA: Must reject if client wants to pursue a frivolous claim, one meant to harrass, or a claim not warranted under current law or good faith argument for modification.
Creation of Relationship
An att’y client relationship exists if the client reasonably believes it does based on the attorney’s words or actions.
Scope of Representation
The client determines the goals and objectives, and the attorney determines the means. The client decides whether to accept a settlement, testify in a criminal trial, waive a jury trial, or enter a plea.
Settlement Offers
MR: A lawyer must communicate all settlment offers
CA: a lawyer must communicate all written setttlement offers or oral ones if they are a significant development.
Counseling on Crimes
A lawyer must not counsel or aid in the commission of crime or fraud, but can advise on the legal consequences of such actions.
A lawyer MAY (CA)/ MUST (MR) withdraw if the client persists in pursing conduct the lawyer knows to be crime/fraud.
Mandatory Withdrawal
Resulting Violations:
MR: must withdraw if failure to do so will result in a violation of ethics rules or other laws.
CA: Must withdraw if L knows or should know that representation would violate the ethics rules
L’s heath: must withdraw if L’s physical or mental health materially impairs (MR)/renders unreasonably difficult (CA) representation
bad Faith (CA): must withdraw if C asserts a claim without probable cause or for harrassment
Discharge by client
Permissive Withdrawal
Client fails to pay fees
Client makes it unreasonably difficult
Crime/fraud: Past for MR, Present/Past for CA
Other good cause
MR: would not prejudice client, unreasonable financial burden
CA: inability to work with co-counsel, physical condition makes it difficult
[FUCC]
Procedures and Duties Upon Termination
-Must give reasonable notice to client, must get court permission if involved in litigation
-Duty to mitigate damage to client
-Duty to return papers/property (MR: can retain as security)
-Duty to return unearned fees (but can recover quantum meruit)
Fees
Must be not be unreasonable (MR)/ unconscionable (CA)
Factors: time, labor, skill, expertise, difficulty, fraud (CA), relative sophistication (CA)
CA writing requirement: fees likely to be more than 1k, must be signed by both lawyer and client, must include details of fee, otherwise voidable, exceptions: client is corporation, emergency, client has waived, similar to past services
Contingent Fees
Not allowed for criminal cases, divorce, spousal/child support determinations
Must be in writing, signed by client (MR) and lawyer(CA), with details on how fee is calculated and a statement that it is negotiable (CA only)
Property as payment
Receiving property as payment is fine as long as it is not an interest in the subject matter of the pending litigation
Fee Splitting
Non-lawyers: not allowed unless death benefit, employment compensation
**Lawyers: **
MR: split must be in proportion or lawyers must agree to be jointly/severally responsible, C must give informed written consent, and the total fee must be reasonable
CR: must be a written agreement between the lawyers, client must give written consent after full disclosure, and the total fee must not be higher because of the splitting
Referral Fees
MR: not generally allowed unless its an approved lawyer referral service or nominal gift
CA: can give gifts but can’t promise them or give them to encourage more referrals, can use state bar approved referral services
Reciprocal agreements are allowed so long as they are not exclusive or indefinite, and the client must be informed
Client funds
-Must be kept in dedicated client fund account
-No commingling of client funds
-Disputed funds must not be withdrawn until dispute is resolved
-Records must be kept for 5 years
-Notice of received funds must be given promptly (MR) or within 14 days (CA)
-Delivery of funds must be delivered promptly (MR) or within 45 days (CA)
Duty to avoid conflicts of interest between lawyer and client
-No starting a sexual relationship
-cannot be related to opposing counsel or live with them (CA)
-cannot be a witness unless it is an uncontested issue, unless withdrawal would cause substantial hardship to client (MR), or the client gives informed written consent (CA)
-no providing financial assistence, except court fees or limited gifts to indigent clients
-no business transactions unless it is fair, the client understands, had the opportunity to get independent counsel, and gives informed consent in writing
-cannot solicit gifts unless you are related to the client or the client has an independent lawyer (CA)
If conflict exists, can still represent if
1) the lawyer reasonably believes they can still provide competent and diligent representation,
2) not representing opposing clients in the same matter,
3) not prohibited by law, and
4) the client gives informed consent confirmed in writing (MR) or informed written consent (CA)
Duty to avoid conflict of interest between current clients
Cannot represent a client where the representation would be directly adverse or materially limited by representation of another client unless 1) the lawyer reasonably believes they can provide competent and diligent representation, 2) the representation is not prohibited by law, 3) not representing both sides of the same litigation, and 4) the clients give informed consent confirmed in writing (MR) or informed written consent (CA)