PR Additional Cards Flashcards
When A lawyer recieves a Settlement Offer
ABA- L must notify the client unless the client has previously told them that offer would be acceptable or unacceptable
CA- lawyer must always promptly communicate any written settlement offer (amount and conditions), the attorney must consult and abide by their client’s decision in certain matters, including the decision to settle.
Under both, the client control’s the deicison to settle
When can a lawyer delay communicating info to the client?
ABA- lawyer believes client is likely to react imprudently to an immediate communication.
CA- if the L reasonably believes communicating the info would cause imminent harm to the client or someone else
ABA contingency fee agreements must
Be reasonable, in writting signed by the client and must state
(1) % taken,
(2) what expenses will be deducted from recovery,
(3) whether deductions for expenses will be made before or after the % is applied, (4) what expenses the client must pay whether or not they win the case
What factors are considered in determining fee reasonableness under the ABA?
(1) time and labor
(2) novelty and difficulty
(3) skill required
(4) how much of the attorney’s time the client’s mater takes up
(5) customary fees in the geographic ara
(6) lawyer’s reputation/ experience
(7) whether the fee is fixed or contingent
What factors are considered under CA fee rule
Fees cannot be unconscionable or illegal
ABA reasonability factors +
(1) whether L disclosed material facts
(2) L engaged in fraud or overreaching
(3) relative sophistication of L to C
(4) amount of the fee in proprotion to the value of the services preformed
(5) whether the client gave informed consent to the fee
acessed at the time that the agreement is entered into
When a lawyer recieves client’s funds from judgement
ABA- must promptly notify client when funds are recieved + not comingle
CA- must promplty notify client and any third party to which lawyer owes a legal duty + not comingle (but the client trust account must be in CA unless otherwise agreed)
What factors are considered for competence
(1) complexity of the legal matter
(2) lawyer’s experience and knoweledge in the specific field
(3) lawyer’s preparation
In CA competence also includes the lawyer’s mental, emotional, and physical ability necessary to competently preform service.
Duty of Confidentiality
applies to all information gained in the representation of a client regardless of the source, when it was accquired, whether the client asked for it to be kept confidential, whether it is a secret or embarassing to the cleint.
Lawyer can limit the scope of work if
(1) limitation is reasonable
(2) client gives informed consent in writing
duty of diligence includes
1) controlling one’s workload so that each matter can be adequately handled and
2) acting with dedication to the client’s interests
in California a lawyer has not violated the duties of diligence or competence if:
single, isolated, minor act of incompetence
contingency fee in CA additional disclosures
1) that the percent can be negotiated (is not set by law) and
2) how the client will be charged for work not covered by contingency
even if there is no material limitation under the conflicts rules in CA the lawyer must provide
written disclosure of certain relationships:
* lawyer has a legal, business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the client’s matter
* lawyer is an immediate family member of, or lives with, or is in an intimate personal relationship with another party’s attorney or is a client of the firm representing the other party
unconscionability factors
1) fee in proportion to the value of the services performed.
(2) The relative sophistication of the member and the client.
(3) novelty, difficulty and skill required
(4) proprortion of lawyer’s time the matter took up
(5) The amount involved and the results obtained.
(6) The time limitations imposed by the client or by the circumstances.
(7) The nature and length of the professional relationship with the client.
(8) The experience, reputation, and ability of the member or members performing the services.
(9) Whether the fee is fixed or contingent.
(10) The time and labor required.
(11) The informed consent of the client to the fee.
at the end of a contingency case
the lawyer must give the client a written statement showing the outcome of the case, the remittance to the client, and how the remittance was calculated.
ca competence rule
A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.
For purposes of this rule, “competence” in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.
concurrent conflict
L cannot rep someone if
1) directly adverse to another client
2) significant risk that lawyer’s duties to another client, former client or third person or the lawyer’s personal interests will materially limit the lawyer’s representation
3) (CA ONLY)- lawyer has a buis or personal relationship with the lawyer or party or witness in the same matter
Cured by
1) not directly adverse to client in same matter
2) not against law
3) lawyer reasonable believes she can provide competeent and dilligent rep despite the conflict and
4) C gives informaed consent in writing
exceptions allowing multi juridictional practice where not barred
A lawyer admitted in another U.S. jurisdiction…may provide legal services on a TEMPORARY basis in this jurisdiction if (one of the following):
1) LOCAL COUNSEL actively participates in the matter
2) PRO HAC VICE) - authorized or reasonably expects to be authorized
…arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
3) In-house Counsel - Also allows foreign/ non-admitted lawyers to provide legal advice for transactional work (non pro hac vice required) to their own employer
4) Special federal law - are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction (labor law, patent law)
CA Self- reporting requirements
(1) charged with a felony;
(2) convicted of a serious crime;
(3) found civilly liable for fraud/misrepresentation/breach of fiduciary duty/gross negligence committed in a professional capacity;
(4) disciplined;
(5) sanctioned $1,000 or more, except for discovery sanctions;
(6) sued formalpractice three or more times within a year, OR
(7) a court judgment is based upon misconduct, grossly incompetent representation, or willful misrepresentation of the lawyer.
what does the duty of confidentiality prevent lawyer from doing?
1) reveal any information relating to the representation of a client and
2) Use confidential client info to the client’s disadvantage
+ affirmative duty to take reasonable measures to protect a client’s info
Can a lawyer be member of a non-profit legal advocacy org?
an attorney is permitted to be a member of a nonprofit legal services group, even if
it advocates for legislation and rulings that are adverse to the attorney’s client. However, an attorney is not permitted to take any action within that group if it would
(1) adversely impact the attorney’s current client or
(2) if the attorney would be making a decision for the organization that impacts a person with interests adverse to the attorney
lawyer’s duty of candor
A lawyer has a duty not to make a false representation of fact to any person, including the client.
reciprocal referal aggreement is permited by ABA if
1) Reciprocal non-monetary arrangement
2) Non-exclusive and
3) The client is informed of the agreement
lawyer advertising is misleading if
- Would lead a reasonable person to reach an unfounded conclusion
- Reports the lawyer’s achievements on behalf of clients and would lead a reasonable person to form an unjustified expectation of receiving the same results
- Contains an unsubstantiated comparison or claim of the lawyer’s services or fees