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
sucsessive lawyers
If client discharges lawyer 1 who was on contingency, ow lawyer withdraws with good cause, then client goes on to win the case, lawyer can recover reasonable value of her services up until the time of the discharge
disqualified lawyer may be entitled to recovery for services performed prior to their removal under the unjust enrichment doctrine.
double billing
ABA- no double billing
CA allowed if:
(1) fee charged to each is “not unconscionable”;
(2) lawyer clearly disclosed the billing practice at the outset of the relationship; and
(3) the lawyer obtained both clients’ consent.
who is represented in an Org?
for purpose of prohibition on communicating with represented person
those who
* supervise, direct or regularly consults with the organization’s lawyer concerning the matter or
* has authority to obligate the organization with respect to the matter or
* whose act or omission in connection with the matter may be imputed to the organization
CA rule includes
* any current officer, director, partner, or managing agent of the organization or
* whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
communications with an unrepresented person
- 1-lawyer must not state or imply that the lawyer is disinterested,
- 2) must clarify any misunderstanding about the lawyer’s role,
- 3) and must not give the person legal advice except for the advice to secure counsel (if person’s interest conflict with client’s interests)
CA adds- a lawyer must not seek to obtain privileged or otherwise confidential information
chicanery at trial
1) Assert personal knowledge of facts
2) Refer to inadmissible material
* No such rule in CA
3) State a personal opinion about the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused
* CA rule is less restrictive- CA rule only prohibits statements of personal opinion concerning the guilt or innocence of an accused.
who is a prospective client
ABA- someone who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.
CA- someone who consults the lawyer for the purpose of hiring the lawyer OR securing legal services/advice.
Excluded (not a prospective client if)
* Communicated unilaterally without a reasonable expectation that the lawyer is willing to be retained;
* Communicated for the purpose of disqualifying the lawyer
* after the lawyer has stated an unwillingness or inability to consult [CA only];
without a good faith intention to seek legal advice or representation [CA only];
Duties owed to prospective clients
duty of confidentiality–> A lawyer CANNOT represent a client
* 1) with materially adverse interests to a prospective client in the
* 2) same or a substantially related matter
* 3) if the lawyer received confidential information material to the matter from the prospective client that could be could be significantly harmful to the prospective client,
Protect the person’s property in the lawyer’s custody; and
Competence -Use reasonable care to the extent the lawyer provides the person legal services.
duty to safeguard client property
- Identify and label and put them in a safe deposit box or other place of safekeeping as soon as practicable
- Promptly notify the client or third person when the lawyer receives funds or property in which the client or third person has an interest (ca no later than 14 days)
- Promptly deliver funds or property to which the client or third person is entitled (CA- if funds are not or no longer in dispute, lawyer must distribute within 45 days or gives rise to a rebuttable presumption that a lawyer is in violation of the ethics rules)
- Keep records for at least 5 years
- promptly return all client property
- No commingling
- Lawyer must keep disputed property separate until resolution of dispute
former client conflict
1- current and former clients’ interest are materially adverse AND
2- same or substantially related matter
“substantially related”if
* 1) they involve the same transaction or legal dispute OR
* 2) if there otherwise is a** substantial risk that confidential factual information that would normally have been obtained in the prior representation** would materially advance the client’s position in the subsequent matter.
migratory lawyers
Lawyer cannot knowingly represent a client against a client of her former firm if
* 1) same or substantially related matter
* 2) the clients interests are materially adverse and
* 3) about whom the lawyer had acquired confidential info material to the case. Only conflicted if she actually has confidential info about her old firm’s former client
Cured if former client gives informed consent in writing
new firm can avoid imputation if proper screen, no sharing in fees and notice to former client
* CA rule says preventing imputation via a screen is only an option if the disqualified lawyer did not substantially participate in the same or substantially related matter while at their former firm.
Old firm take on new client against former client (that migratory lawyer took with them):
Old firm MAY represent the side adverse to that client UNLESS…
* (1) the matter is the same or substantially related
* 2) ANY lawyer remaining in the firm has material and confidential info
* Important: A screen is not effective
Could be cured by former client’s informed consent in writing
can lawyer participate in law reform advocacy?
ABA rule 6.4 explicitly allows a lawyer to continue working as a member, officer, director of an organization, even if the reforms advocated by that organization could affect the interests of clients in the lawyer’s private practice
If in the clients interest → must disclose
If against clients interests → okay but should be mindful under conflicts rules if you actually have an inconsistent position conflict
Duties Owed to Clients
Competence and Diligence
Confidentiality
Communication
Loyalty
* conflicts
* Fees
* Buis transactions
* gifts
Candor
Safeguard Property
what info must be communicated to get client’s informed consent?
To get informed consent, the lawyer must communicate adequate information and explanation about the risks and alternatives to a course of conduct.
exceptions to duty of confidentiality
- Client gives informed consent
- impliedly authorized in order to carry out the representation
- Candor to the court requires it (NOT CA)
- to comply with other law or a court order
- outside reporting requirements for corporate misconduct (NOT CA)
- prevent reasonably certain death or substantial bodily harm (CA requires a crime likely to result in death or substantial bodily harm)
- Used/ aims to use lawyer’s services to perpetuate a crime or fraud causing substantial financial injury (CA does not allow for financial injury)
- to secure legal advice about ethics dilemmas (CA doesnt have but has a bar hotline that keeps confidences)
- Lawyer’s self defense
- to detect and resolve conflicts of interest arising from the lawyer’s change of employment (CA doesnt have)
CA only allows disclosure to prevent death or substantial bodily harm from a CRIMINAL ACT and lawyer must FIRST..
1) make a good faith attempt to counsel the client out of committing the crime and/or changing their course of action; and
(2) inform the client of the lawyer’s ability or decision to disclose the information.
presence of third person will not destroy AC priv if…
- Common Interest Rule or
- presence was reasonably necessary for the protection of the client’s interests in the particular circumstances (majority rule)
- vs Minority rule/ CA- “who is present to further the interest of the client in the consultation,
