Professional Responsibilities Flashcards
PR General Orangization
approach
- by attorney’s act or event or incident, chronologically
- Discuss in the subheadings the duties implicated by that event
- Two IRACs:
a) one under ABA rule and its application and
b) one under CA rule and its application - In each Application:
a) explain how and in what ways the attorney may have breached the duty
b) INTENSIVE AND COMPLETE USE OF FACTS REQUIRED
(1) Application” requires patience, and is a fact-intensive exercise
letting others violate rule
The rules prohibits violating the rules through the actions of another.
advertisement
Approach
- General advertising
- particular subjects
a) advertising
b) solicitation
c) direct mail solicitations
Advertising**
Duty of Truthful Advertising
Advertising is a general atttempt to obtain business while solicitation is a directed contact with particular individuals.
A lawyer cannot make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
a) contains a material misrepresentation of fact or law; or
b) omits a fact necessary to make the communication considered as a whole not materially misleading.
Both ABA and CA prohibit a lawyer from compensating, giving or promising anything of value to persons for recommending the lawyer for employment. Nether rules prohibits paying reasonable advertising costs.
Solicitation**
Duty of Truthful Advertising
A lawyer must not seek fee-paying work by initiating live person-to-person contact with a prospective client who is not a former client, current client, or someone with whom the lawyer has a personal, professional, or family relationship. However, absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer may send truthful, non-deceptive letters to persons known to face a specific legal problem.
The California RPC requires written or recorded communications with prospective clients who are known to need specific legal services must be labeled as “advertising material.”
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a business card is a “communication” under the California rules.
Solicit for Pro bono
A lawyer who wishes to challenge a law and seeks to represent a client pro bono for such purpose can solicit a client since he has no interest in pecuniary gain.
Truthful Advertising**
CAL RPC/not stated
An advertisement must be truthful.
Cal Law prohibits (Business & Professions Code):
a) A guarantee or warranty of outcome
b) Words or symbols that suggest quick cash or a quick settlement
c) An impersonation of a lawyer or client without disclosure that is an impersonation
d) A dramatization of an accident or other event without disclosure; and
e) A contingent fee offer that does not warn that client who loses a case must still pay litigation costs if that is the arrangement, , unless, if appliable, it also states that client will be responsible for any costs advanced by the lawyer if no recovery is obtained; and,
f) Advertisements containing any false, misleading, or deceptive statements, or omissions of any fact necessary to make the statements made not false, misleading, or deceptive.
write only relevant factors
Cal B&P Code lists of practices that are presumed false or misleading:
a) A message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result.
b) The depiction of an event through methods such as the use of displays of injuries, accident scenes, or portrayals of other injurious events which may or may not be accompanied by sound effects and which may give rise to a claim for compensation.
c) A message referring to or implying money received by or for a client in a particular case or cases, or to potential monetary recovery for a prospective client.
(1) A reference to money or monetary recovery includes, but is not limited to, a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth.
Direct Mail Solicitations
Targeted direct mail solicitations not involving live person-to-person contact are permitted unless (1) the lawyer knows that the prospective client does not wish to receive communications from the lawyer or (2) the communication involves coercion or harassment
Duty to Make Reasonable Fee Arrangements
When the lawyer has not regularly represented the client, the lawyer must communicate the reasonable legal fee, preferably in writing, to the client before or within a reasonable time after commencing the representation. CA RPC specifically requires representation to be in written agreements if the total fee is reasonably expected to exceed $1,000.
Two main issues concerning Fees
not rules
- Financial Assistance to clients and the concept of “buying” Clients through offers of gifts, loans, or similar devices/financial arrangements; and
- Whether a fee is a Reasonable Fees
Financial Assistance to Clients
ABA Model Rule
In ABA model rule, A lawyer must not provide financial assistance to a client in connection with litigation, unless:
(i) a lawyer may advance court costs and litigation expenses, the repayment of which may be contingent on the outcome of the matter; and
(ii) a lawyer representing an indigent client may pay court costs and litigation expenses on behalf of the client.
The ABA Rules implicitly prohibit buying a client with promises of financial assistance.
Summary:
* No financial assistance except:
o Advance court costs
o Pay indigent client costs
* Applies only to litigation
Financial Assistance to Clients
CA RPC
The CA RPC also limits financial assistance, but it:
(i) applies in all contexts, not just in litigation;
(ii) it explicitly prohibits a lawyer from “buying” a potential client with a promise to pay the potential client’s personal or business expenses; and
(iii) unlike the ABA Rules, permits a lawyer to lend money to her client for any purpose after the lawyer is hired if the client gives the laywer a written promise to repay the loan and the written agreement complies with other rules concerning financial transactions with clients.
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Note: But even if financial assistance is permitted, it creates a conflict between the lawyer’s and client’s financial interests that you must also discuss.
Summary:
* Prohibits promise to pay debts
* Rule of limiting financial assistance applies in all situations
* Permits loans AFTER representation begins WITH written agreement BUT implicates financial conflict rules
Reasonable Fees
Under the ABA rules, there are a number of factors in determining a reasonable fee, including difficulty of the matter, the prevailing fees in the locale, how much time and business a lawyer must give up to take the case, and the like. The California rule is to the same effect in that it prohibits “unconscionable” fees—and the factors includes the ones above plus the attorney to receive client’s informed consent.
Contingent Fees**
Contingency fees are generally permitted in California, including landlord-tenant cases. A contingent fee agreement must be in writing, and must state: (1) what expenses the client must pay, whether or not she wins the case; (2) how the fees is to be calculated; (3) what expenses are to be deducted from the recovery; and, (4) whether the contingency fee is on the gross or net recovery. [There, contingent fee offer must warn a client that they must still pay costs even if they lose the case if that is the agreement.]
Rule of Prohibiting Contingent Fee
ABA & Cal prohibit contingency fees in:
1. criminal cases, and
2. in domestic relations cases regarding dissolution, spousal support, or a property settlement in lieu of spousal support.
CA Fee Agreement
California requires a lawyer to communicate fee rates to clients in writing where it is reasonably foreseeable that the total fees and expenses will exceed $1,000 in non-contingency fee cases, except in the following situations:
1) the client is a corporation;
2) the client states in writing that she does not want a written fee agreement;
3) the legal services are the same kind of services that the client has previously received and paid for;
4) the lawyer acted in an emergency to protect the client’s rights; or,
5) a writing is impractical for other reasons.
CA Fee Agreement Requirements
The written contract must contain:
1. the basis for compensation, including but not limited to hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case;
2. the general nature of the legal services to be provided to the client; and
3. the **respective responsibilities of the attorney **and the client as to the performance of the contract.
Failure to comply with the writing requirement renders the contract voidable at the option of the client, and the lawyer can only collect a reasonable fee.
Flat Fees
Under CA, a lawyer can charge a flat fee for a specified service and collect the flat fee in advance.
ABA has no counterpart to this rule.
Fee Splitting with Non-lawyers
Under both ABA and CA rules, a lawyer MAY NOT split a fee with a non-lawyer.
Fee Splitting with Lawyers
ABA Model Rule
Under the ABA rules, a lawyer may split her fee with another attorney, as long as she obtains her client’s consent, it does not increase what the fee otherwise would have been, and the fee is proportional to the work done or the other attorney takes joint legal responsibility for the representation.
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a lawyer may split her fee with another attorney (who is not in the same firm), as long as:
* she obtains her client’s consent,
* it does not increase what the fee otherwise would have been, and
* either the fee is proportional to the work done, OR each lawyer assumes joint responsibility for the representation.
Summary:
* Client’s written consent (confirmed in writing)
* No increase in client cost
* Condition that:
o Proportional to work done OR
o Both attorneys assume joint legal and ethical responsibility
Fee Splitting with Lawyers
CA RPC
In CA, the lawyer may split fees with another lawyer, the lawyer must obtain her client’s informed written consent and it does not increase what the fee otherwise would have been.
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In California, the lawyer may split fees with another lawyer, the lawyer must obtain her client’s informed written consent, but, unlike the ABA Model Rules, there is no proportionality rule, so that any fee split is permitted if it does not increase what the fee otherwise would have been.
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to split a fee with another attorney, there must be:
* a written agreement between the lawyers regarding the fee split and
* the lawyer must obtain her client’s informed written consent.
* Any fee split with an attorney is permitted if it does not increase what the fee otherwise would have been and with client’s consent.
* No proportionality rule.
* No requirement that both attorneys take on full professional responsibility for the case.
Summary:
* Agreement with another lawyer in writing
* Client informed written consent
* No increase in cost
Referral Fees – Voluntary Payment from Attorney to Referrer
A lawyer may not split fees with a non-lawyer, pay “consideration” to a non-lawyer for referring cases, or engage in the practice of law or share legal income with a non-lawyer. Instead, the ABA rules permit the lawyer to give a “nominal gift” as an expression of appreciation. The CA rules permit a lawyer to give a “gratuity” to someone who makes a referral to the lawyer.
Rule of Reciprocal Referral
Both ABA and RPC permit reciprocal referral agreements so long the client is informed and the agreement is not exclusive.