Professional Responsibility Flashcards
Requirements for valid contingency fees
Contingency-fee agreements must be in writing, which state:
* (a)the method by which the fee is to be determined;
* (b)the percentage(s) the lawyer shall receive in the event of settlement, trial, or appeal; and
* (c) the litigation or other expenses to be deducted from the recovery.
The agreement must be signed by the client and by the lawyer.
A lawyer may not charge a contingency fee for:
* (1) domestic relations matters, the payment or amount of which is contingent upon securing a divorce or the amount of alimony or support, or property settlement in lieu thereof, and
* (2) for representing a defendant in a criminal case.
What type of fees can a lawyer recover for representation? Can they take in interest in property subject to litigation?
The attorney must not charge or collect fees which are illegal, expressly prohibited, or clearly excessive. A lawyer must also avoid creating any conflicts of interest likely to affect his representation.
Generally, attorneys are prohibited from charging or collecting a fee which would give the attorney a stake in the outcome of litigation. A lawyer shall not acquire property rights in the subject matter of the litigation, except that the lawyer may:
* (1) acquire a lien granted by law to secure the lawyer’s fee or expenses, and
* (2) contract with a client for a reasonable contingent fee.
May lawyers enter into business transactions with their clients?
A lawyer must not enter into a business transaction with a client unless:
* (1) the terms are fair and reasonable and fully disclosed to the client,
* (2) the client is given a reasonable opportunity to seek the advice of independent counsel on the transaction, and
* (3) the client consents in writing.
What are factors for determining the reasonableness of an attorney’s fees?
Factors considered in determining the reasonableness of a fee are:
* (1) the time and labor required,
* (2) the novelty and difficulty of the questions involved,
* (3) the skill required to perform,
* (4) interference with other employment of the lawyer,
* (5) the customary fee in the locality for similar work,
* (6) the amount involved and the result obtained,
* (7) the nature and extent of the relationship between the lawyer and the client,
* (8) the experience, ability, and reputation of the attorney,
* (9) time limitations imposed by the client, and
* (10) whether the fee is fixed or contingent
Can attorneys communicate with parties who are represented by other counsel? How does this rule apply to opponent corporations and their employees?
In the representation of a client, a lawyer must not communicate about the subject matter of the representation with a person he knows to be represented by counsel unless the person’s counsel has granted permission or he is otherwise authorized by law or rule to make such a direct communication.
In the case of a represented organization, such as a corporation, the rule prohibits communications by the opposing party’s lawyer, concerning the subject of the representation, with persons having a managerial responsibility on behalf of the organization and with any other person whose act or omission in connection in any matter may be imputed to the organization.
However, a lawyer may contact the former employee of an organization, even if her acts may be imputed to the organization, as long as the former employee no longer regularly communicates with the organization’s lawyer about the matter.
Are lawyers liable for ethical violations committed by their employees?
A lawyer having supervisory authority over a nonlawyer employee must make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the lawyer’s professional obligations.
When are lawyers allowed to solicit communication with prospective clients? What are the rules for written soliciations?
A lawyer may not send a communication with a prospective client within 30 days of the accident or disaster that prompted the communication. Even if a communication is not prohibited, it is subject to certain requirements:
* The subject line of emails sent must begin with the word “advertisement.”
* If the communication is prompted by a specific occurrence, the first sentence must disclose how the lawyer learned of the accident, and that the prospective client should disregard the letter if they have already retained counsel for the matter.
* All written communications must be accompanied by a written statement detailing the background, training, and experience of the lawyer or law firm.
Additionally, all communications are subject to general advertising rules, which state that lawyers must not engage in deceptive or misleading advertising. Advertisements that guarantee or promise certain results are considered misleading.
What are a lawyer’s obligations regarding candor towards the tribunal?
A lawyer has an obligation of truthfulness in statements to others and an obligation of candor towards the tribunal. A lawyer may not knowlingly:
* (a) make a false statement of material fact or law to a tribunal;
* (b) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or
* (c) knowingly offer false evidence.
What must a lawyer do when a client insists on taking actions that are criminal or fraudulent?
A lawyer must not counsel or assist a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client.
When a lawyer knows or reasonably should know that a client expects assistance that violates the RPC or other law, the lawyer must advise the client of the relevant limitations of the lawyer’s conduct. Representation should be declined if:
* (a) the representation will result in the violation of the RPC or other law; or
* (b) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, unless the client agrees to diclose and rectify the crime or fraud.
Are lawyers permitted to advance court costs on behalf of their clients?
A lawyer may not provide financial assitance to a client in connection with pending or completed litigation, except that a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, and a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
Are lawyers permitted to receive gifts from their clients?
A lawyer must not **solicit gifts **from clients or prepare an instrument such as a will on behalf of a client giving a gift to the lawyer or a relative of the lawyer. However, these prohibitions do not apply if the client is related to the recipient of the gift (that is, the lawyer or the lawyer’s relative). For purposes of this rule, “related” persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.
