Professional Responsibility Flashcards
When is a lawyer subject to discipline?
A lawyer is subject to discipline for any of the following:
- Violating, attempting to violate, knowingly assisting another, or using the acts of another to violate the rules of professional conduct.
- Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
- Stating or implying ability to improperly influence a government agency or official or achieve results by illegal or unethical means.
- Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
- Engaging in conduct prejudicial to the administration of justice.
- Knowingly assisting a judge or judicial official in violating rules of judicial conduct or other law.
- Engaging in harassment or discrimination related to the practice of law.
CA also prohibits an attorney or their firm from unlawful discrimination, harassment, and retaliation on the basis of a protected characteristic.
How is a lawyer-client relationship formed?
A lawyer-client relationship is formed by:
- Express agreement
- Implied agreement - where a person seeks legal advice or services, the lawyer does not decline representation, and the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide services.
- Court Appointment
What key decisions must a client make?
- Whether to accept a settlement offer.
- What plea to enter in a criminal case.
- Whether to waive a jury trial in a criminal case.
- Whether the client will testify in a criminal case.
What is the general rule for attorney’s fees?
ABA: Within a reasonable time after commencing the representation the lawyer must communicate the basis of the fee and the expenses for which the client will be responsible. The fee must be reasonable.
CA: Where it is reasonably foreseeable that the total expense to the client will exceed $1,000, the fee agreement must be in writing. Except if the client is a corporation, the legal services are the same kind of services the client has previously received, the lawyer acted in an emergency to protect the clients rights. Rather than unreasonable CA prohibits fees that are illegal or unconscionable.
What are the factors to determine if a fee is reasonable?
- Time and Labor required
- Novelty and Difficulty of the questions involved
- Skill required to perform the service
- Likelihood that the matter will preclude other employment.
- Customary fee in the locality.
- The amount involved and the result obtained.
- Nature and length of relationship between the lawyer and client.
- experience, ability, and reputation of the lawyer.
- Time limitations imposed by the client or the circumstances.
10 Whether the fee is fixed or contingent.
May a lawyer collect fees in advance of providing services?
ABA - A lawyer may require their fee to be paid in advance, but they must refund any unearned part. A flat fee is also permissible. A true retainer fee is payment in advance for a lawyer’s availability rather than payment for legal services.
CA - California rules are generally similar but more specific on fees that are nonrefundable. A lawyer must not make an agreement for a nonrefundable fee unless it is a true retainer and the client agrees in writing after disclosure that they will not be entitled to any refund.
Way a lawyer accept property for services?
A lawyer may accept property in return for services. However, such an arrangement is subject to scrutiny as a potential conflict of interest as a business transaction or pecuniary interest adverse to a client.
What are the rules for contingent fees?
Contingent fees are enforceable if:
1. They are reasonable.
2. In a writing signed by the client that discloses:
a) how the fee is calculated
b) what expenses are to be deducted
c) whether deductions will be made before or after the fee is calculated
d) any expenses that must be paid regardless of outcome
CA also requires the disclosure to state:
e) that the lawyer’s percentage is not set by law and can be negotiated
f) how the client will be charged for work not covered by the contingency.
If a lawyer on contingency is discharged the lawyer may collect the reasonable value of their services performed when the contingency comes to pass.
When are contingent fees prohibited?
Contingent fees are prohibited in:
1) when defending a person in a criminal case.
2) domestic relations cases based on securing a divorce, the amount of alimony or support, or the amount of a property settlement. However, a lawyer may use a contingent fee in a suit to recover post-judgment balances due.
When may fees be shared?
- Between lawyers in the same firm.
- Between two or more lawyers in different firms if:
a) the total fee is reasonable
b) the fee is proportional to the services performed by each lawyer or each lawyer assumes joint responsibility for the matter
c) the client agrees to the split in a writing that discloses the share each lawyer will receive
CA - Requires that the agreement between the lawyers is in writing, that the total fee is not increased solely by reason of the agreement to divide fees, and the client agrees to the split and its terms in writing.
When must an attorney withdraw from representation?
A lawyer must withdraw with permission of the court when:
1) the representation will result in violation of the rules of professional conduct or other law.
2) the lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client. (CA-“renders it unreasonably difficult”)
3) the lawyer is discharged by the client
When may an attorney withdraw from representation?
A lawyer may withdraw from representation when:
1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
2) the client has used the lawyer’s services to perpetrate a crime or fraud.
3) the client fails substantially to fulfill an obligation to the lawyer and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.
4) representation has been rendered unreasonably difficult by the client.
5) the client insists on taking action that the lawyer considers repugnant
6) the representation will result in a unreasonable financial burden on the lawyer
7) withdrawal can be accomplished without material adverse effect on the client’s interest.
8) other good cause.
CA does not recognize 5, 6, or 7 but adds the following that would likely fall under the ABA “other good cause”:
9) the client knowingly and freely assents to termination
10) representation is likely to result in a violation of the Cal.RPC.
11) the lawyers mental or physical condition renders it difficult for the lawyer to continue the representation.
12) the client insists on presenting a frivolous claim, defense, position in a negotiation of nonlitigation matter
13) the lawyer’s inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.
What must an attorney do when representation is terminated?
A lawyer must take reasonable steps to protect the clients interests, including, giving reasonable notice, allowing time for the client to retain other counsel, surrendering papers and property, refunding advance payments.
What is the lawyer’s duty of confidentiality?
A lawyer must not reveal information relating to the representation of a client. The duty continues even after the client has died.
What are the exceptions to the lawyer’s duty of confidentiality?
1) Express or Implied Consent - a lawyer may reveal information about the representation in order to carry out the representation
2) To prevent an act that they are reasonably certain will result in death or substantial bodily harm. CA only permits for a criminal act.
3) To prevent the client from committing a crime or fraud that is reasonably certain to cause substantial financial loss if the client is using or has used the lawyer’s services to commit the crime or fraud. CA does not recognize this exception.
4) Disclosure is required by court order or other law.
5) Disclosure is necessary to collect a fee or protect the lawyer from a criminal or civil claim.
6) To obtain legal ethics advice. CA does not recognize this exception
7) Disclosure necessary to assess a potential conflicts of interest, but may not reveal information that would compromise attorney-client privilege or otherwise prejudice the client. CA does not recognize this exception.
