PR Boost Flashcards
When is a L-C relationship formed?
- A person seeks legal advice from a lawyer;
AND
- The lawyer either:
- Manifests consent to provide services; OR
- Fails to manifest a lack of consent and knows the person would reasonably rely on the lawyer to provide legal services.
*In CA, the reasonable perception of a purported client may determine if such person is deemed a client of the lawyer
A L may not take on rep. of C where he lacks competence unless he does what?
Lawyer cannot take a case in an unfamiliar area of law
UNLESS he:
- associates with another competent lawyer; OR
- acquires sufficient learning & skill
BEFORE performance.
- He may also refer the matter out to another competent L.
Permissible under both ABA and CAL.
What things (enumerated list) does the Duty of Communication require?
- Informing a client when informed consent is required;
- Keeping the client reasonably informed on status;
- Promptly complying with requests for info calls and inquiries
- Consulting with the client on strategy decisions and on matters requiring their consent; AND
- Advising when the lawyer knows a client expects assistance not permitted by ethical rules.
What is the duty of confi and when may a L disclose confi information?
L may not reveal info related to rep of client. Unless:
a) The client consents;
b) Ordered by law;
c) It’s needed to defend a malpractice action;
d) To prevent death or substantial bodily harm;
e) To prevent the client from committing a crime/fraud that will result in substantial financial loss;
f) To secure legal advice about complying with ethical rules.
CA
- death of SBH + 3 rules
- compelled by court order
What must L do when it receives confi information inadvertently?
ABA
Lawyer has a duty to notify opposing counsel of any documents accidentally received.
CA
1) Refrain from examining materials any more than necessary to determine if privileged;
2) Immediately notify the sender; AND
3) Proceed to resolve the situation.
NOT required to return the documents under ABA or CA
What must a lawyer do w Client property at the end of a representation or upon request of the C?
Notice/Time: Give C reasonable notice
Mitigate harm: Take reasonable steps to mitigate harm
Return Papers:
A lawyer MUST return client property upon request or at the end of representation.
In CA, a client case file cannot be withheld for the purpose of getting paid.
Fees: Return any unearned fees (L may keep a retainer)
Under the duty of candor, what type of conduct is prohibited?
a) Make a false statement of fact/law;
b) Fail to correct a false statement of material fact or law;
c) Fail to disclose known controlling legal authority (unless opposing counsel does so); OR
d) Offer or use evidence that the lawyer knows to be false.
When a criminal defendant wants to testify on his own behalf (and lawyer knows he will commit perjury), what MUST the lawyer do?
Priority: HIGH
1) Try to persuade client to not commit perjury;
2) Attempt to withdraw from the case; AND
3) If attempt to withdraw is unsuccessful, then:
- ABA: Lawyer must tell the court (including confidential info, if necessary).
- CA: Allow defendant to testify in narrative fashion (cannot disclose confidential info to the court).
When is a L permitted to pay a W?
(a) Expenses reasonably incurred (i.e. travel, hotel);
(b) Reasonable compensation for loss of time; OR
(c) Reasonable fee to an expert witness.
When are Extrajudicial Statements NOT permitted?
- L knows (or should know),
- will be disseminated by means of public communication; AND
- will have a substantial likelihood of materially prejudicing the case or influencing jurors.
What is a Contingency Fee Agreement? What are the requirements under the ABA?
Priority: HIGH
An agreement between lawyer and client stating that the legal fees will be paid out of any recovery the client receives.
- Must be in a writing signed by the client;
- Include: the % of recovery the lawyer will take, the expenses deducted from recovery, and
- whether the % will be taken before or after expenses.
When are contingency fee agreements prohibited?
Prohibited: HIGH
1) In domestic relations matters – when payment is contingent upon divorce or amount obtained.
2) When representing a criminal defendant.
In CA, what additional items are required in a Contingency Fee Agreement?
Priority: HIGH
The writing must also include:
- How work/expenses not covered by the contingency fee will be charged; AND
- That the fee is not set by law and is negotiable.
- Be signed by both parties (L-C).
Failure to comply with ethical rules, renders the agreement voidable at option of the client.
What does L’s B transactions in CA require?
LS ROLE FULLY DISCLOSED IN WRITING
AND
Terms fair/reasonable
Terms fully disclosed in writing
C represented by inde C
IWC
In CA, when can L solicit a gift?
If ind. L or
Fair or
No undue influence
Imputed firm disqualification, what must be included in the notice to C?
the cert. of compliance
Limiting Malpractice: When OK?
CA: Never
ABA: Ok if C advised in writing to seek outside L
Scope of Rep: C determines what kind of issues?
SUBSTANTIVE
pleas
offers
settlements
jury trial issues
What must be on L advertising beyond, L name + address?
When does CA presume a violation?
be truthful
labeled as ads
CA
- express guaranty or warranty
- testimonial without disclaimer
- “No fee without recovery,” - client cost MUST be disclosed
When are gifts (recip referral agreements) between Ls OK?
Not exclusive and
C is informed
How does Cal define diligence?
Commitment
Dedication
No neglect
No undue delay
When is L liable for other Ls ethical violations?
ratify
supervise
could mitigate
Permissive Withdraw Grounds
- Crime Fraud (used) (seeks to use, perpetrate, insists L pursues)
- C’s breach of legal services agreement
- C is unreasonable difficult
- Other good cause
ABA
- No MAE
- Unreasonable financial burden on L
- C repugnant
CA
- C assents
- Can’t work w Co-Counsel
- C insists on claims without good faith
When may an L limit the scope of rep?
Its reasonable under the circumstances and
C gives informed consent
When can a L settlement a claim for malpractice?
The C has an inde. L OR
the C is informed in writing that they may seek the advice of inde. Counsel (and are given opp. to do so)
(both CA and ABA)
A L cannot file friv claims with the Court? what does the rule specifically prohibit?
friv. claims defenses, args, positions w the Court
Good faith arm for an extension, modification or reversal of existing law is NOT deemed friv
in CA, rule also applies to defenses appeals, actions that LACK PROBABLE CAUSE and are INTENT TO HARASS or MALICIOUSLY INJURE
L as a Witness Rule
Low Priority
L cant act as a trial counsel when likely to be a necessary W unless:
- uncontested issue
- relates to nature/value of legal services
ABA: Ls disqual would create a substantial hardship
CA: L obtained IWC
What are the rules for Solicitation?
L cannot solicit a person for professional employment by in person, live telephone, or real time electronic contract when a significant motive is for pecuniary gain UNLESS the person:
is a L
have a family/personal/prior profes. rltsp w L
routinely uses the type of legal services offered for B purposes (ABA ONLY)
Can a L enter into a business deal with a non L?
Yes, however non-Ls cannot be partners, SHers, or officers in a law firm or business that involves the practice of law
Fee Splitting Between Ls
Client consents in writing
reasonable + proportionate (ABA)
total fee not increased bc of division (CA)
full written disclosure of terms before consent (CA)
In CA fees can be split even if one L does no work.
Recip Referrals (between Ls)
Not exclusive
C informed
