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
