PR Flashcards
PR - DUTY OF TRUTHFUL ADVERTISING
1st A commercial speech - protected if not false/misleading.
CA PROHIBITS:
1) Guarantee or warranty of outcome
2) Words or symbols suggesting quick cash/settlement
3) Impersonation of atty/client w/o disclosure
4) Dramatization w/o disclosure
5) Contingent fee offer that doesn’t warn that losing clients must still pay litigation costs (if that is the arrangement).
CA PRESUMPTION of False/Misleading if:
1) delivered to potential client in hospital or while suffering from mental/physical stress
2) Mailings that seek fee-paying work and are not clearly labeled as advertising material
3) Contains testimonials or endorsement w/o a disclaimer that they are not a promise about results in potential client’s case
PR - DUTY TO AVOID SOLICITATION
Attorney must not seek fee-paying work by initiating personal or telephone contact w/ prospective client who is not a former or current client or someone w/ whom the atty has a personal, professional, or family relationship.
PR - TARGETED DIRECT MAIL SOLICITATION
Absent ACTUAL knowledge that a prospective client does not wish to receive communications from the lawyer, an atty may send truthful, non-deceptive letters to persons known to face a specific legal problem.
PR - FEE ARRANGEMENTS
When atty has not regularly represented a client, the fee must be communicated to the client, preferably in writing, before or w/in a reasonable time after commencing the representation.
In CA, it must also be in writing if it is likely to exceed $1K unless (1) client is a corp, (2) client states in writing that he doesn’t want a written agreement, (3) legal services are of the same kind previously received, (4) atty acted in an emergency, or (5) a writing is impractical
PR - BUYING CLIENTS
ABA
Atty may not provide financial assistance to client in connection w/ litigation unless: (1) advancing ct costs and expenses of litigation OR (2) paying such costs and expenses for an indigent client
CA Same but (1) applies in all contexts, (2) explicitly prohibits atty from promising to pay potential client's personal or business debts, and (3) permits atty to lend $ to client for ANY purpose after he is hired if client gives a written promise to repay
PR - REASONABLE FEES
ABA = reasonable; CA = not unconscionable
FACTORS:
1) difficulty of matter
2) prevailing fees in locale
3) time and business atty must give up to take the case
PR - CONTINGENT FEES
Agreements must be in writing and state:
1) how fee is to be calculated
2) what expenses are to be deducted from recovery
3) whether fee is on gross or net recovery, and
4) what expenses client must pay regardless of success
ABA: prohibited in crim and domestic relations cases
CA: prohibited in crim; allowed in DR so long as it doesn’t promote divorce
PR - FEE SPLITTING
May NOT split w/ non-lawyer
May split w/ another atty if:
1) it doesn’t increase what fee would have been
2) client consents, AND
ABA 3) either fee is proportional to work performed OR each atty assumes joint responsibility for the representation
CA 3) consent is informed and in writing
PR - CONFLICT OF INTEREST
A conflict of interest exists where the interest of a client are directly and materially adverse to the interest of another client OR there is a significant risk that the representation will be materially limited by the lawyer’s own interest or the interest of a client, former client, or third person.
PR - WAIVING A CONFLICT
ABA:
1) Atty reasonably believes he can competently and diligently represent each client
2) Representation is not prohibited by law
3) Does not involve direct assertion of claim by one client against the other
4) Atty obtains client’s informed, written consents
CA:
1) Clients give informed, written consent to conflicts between clients OR
2) There is written disclosure of a conflict w/ the atty’s personal or financial interest
PR - AGREEMENTS LIMITING MALPRACTICE
PAST
Atty should withdraw OR advise the client in writing that he is not advising the client as to the settlement and that the client should seek independent counsel and give him an opportunity to do so AND fully disclose in writing the terms and effect of settlement
PROSPECTIVE
ABA: only allowed if client is represented by independent counsel
CA: absolutely prohibited
PR - IMPUTED CONFLICTS
If an atty faces a conflict, no atty in his firm may represented the client UNLESS the conflict is caused by:
1) former/current gov’t lawyer
2) purely personal interest of the atty that will not inhibit others from presenting the client competently and diligently
3) atty’s close family relationship w/ another atty representing a different client in the matter
4) atty’s sexual relationship w/ client
PR - CONFLICT SCREENING
An imputable conflict will not be imputed if:
1) the disqualified atty is timely screened from any participation in or access to the matter
2) the disqualified atty does not receive any part of the fee for the matter
3) written notice is promptly given to affected formed clients including their right to object and have the issue heard by a tribunal, and
4) certifications of compliance are regularly provided to the former client
PR - GOV’T ATTY CONFLICT
ABA
Atty is prohibited from representing a client in connection w/ a matter in which he personally and substantially participated as a gov’t agent/employee UNLESS the gov’t agency gives informed, written consent
CA
An atty who participated on the prosecution side is prohibited from participating on the ∆ side (NOT WAIVABLE)
PR - FINANCIAL TRANSACTION INVOLVING ATTY AND CLIENT
1) Transaction and terms are fair and reasonable to client and have been fully disclosed in writing in a manner he can reasonably understand
2) Client is informed in writing of the desirability of obtaining independent counsel to review the terms and given a reasonable opportunity to do so
3) Client understands atty’s role in transaction and gives informed consent in writing
