Professional Responsibility 46-61 Flashcards
Prosecutors may only proceed with a case if probable cause exists.
When does probable causeexist?
If there are:
Sufficient facts;
To lead a reasonable person to believe;
That a crime was committed; AND
That the defendant committed the crime.
Priority: Medium
Ethical Amount of Lawyer’s Fees
(ABA vs. CA)
ABA: Must be reasonablein light of the skill, experience, time, degree of specialty, and difficulty required for the task.
CA: Fee CANNOT be unconscionable or illegal.
Priority: HIGH
General Fee Arrangements
(ABA vs. CA)
ABA: NOT required to be in writing, BUT the fee must be communicated to the client.
CA: ALL agreements must be in writing unless:
The fee is $1,000 or less;
The work is routine work for a regular client;
The client is a corporation;
The client states in writing, after full disclosure, that a written fee agreement is not required;
An emergency to avoid foreseeable prejudice to the client’s rights/interests; OR
The circumstances make a written agreement impractical.
Priority: HIGH
In CA, what MUST a Fee Arrangement include?
How the fee is calculated;
Nature of legal services to be provided; AND
The responsibilities of the lawyer and client.
Priority: HIGH
What is a Contingency Fee Agreement?
What are the requirements under the ABA?
An agreement between lawyer and client stating that the legal fees will be paid out of any recoverythe client receives.
Requirements:
Must be in a writing signed by the client; AND
: the % of recovery the lawyer will take, the expenses deducted from recovery, and whether the % will be taken before or after expenses.
Priority: HIGH
In CA, what additional items are required in a Contingency Fee Agreement?
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.
Failure to comply with ethical rules, renders the agreement voidable at option of the client.
Priority: HIGH
When are contingency fees prohibited?
Prohibited:
In domestic relations matters – when payment is contingent upon divorce or amount obtained.
When representing a criminal defendant.
Priority: HIGH
Under the ABA, when CAN a lawyer share legal fees with lawyers outside of the law firm?
When:
the total fee is reasonable;
the client agrees (incl. share of each lawyer) and the agreement is confirmed in writing; AND
the division is proportional to the work done by each lawyer (unless each is jointly responsible).
Priority: Medium
In CA, when CAN a lawyer share legal fees with lawyers outside of the law firm?
When:
the lawyers enter into a written division agreement;
the client consents in writing after full disclosure; AND
the total fee is not increased by virtue of the fee division agreement.
*In CA, “pure referral fees” ARE ALLOWED if the above items are met.
Priority: Medium
When CAN a lawyer / law firm share legal fees with a non-lawyer?
For:
Death benefits paid to the deceased lawyer’s estate or heirs;
Payments to an estate/representative for the purchase of a lawyer’s practice;
Compensation or retirement planpayments to non-lawyer employees;
Court awarded legal fees that are shared with a non-profit organization that employed, retained, or recommended the lawyer; OR
Authorized lawyer referral service [CA only].
Priority: HIGH
What are the requirements for
Advertising Legal Services?
Advertising is permitted in all formats if it:
Is not false or misleading;
Identifies at least one lawyer or law firm;
Does not hold out a lawyer to be a specialist, unless the lawyer is certified as such; AND
[CA only] clearly includes the word “Advertisement”, unless it’s apparent that the communication is an advertisement.
Priority: Medium
What are the rules for Solicitation?
A lawyer CANNOT solicit a person for professional employment by in person, live telephone, or real time electronic contact when a significant motive is for pecuniary gain,
UNLESS the person:
is a lawyer;
has a family, close personal, or prior professional relationship with the lawyer; OR
routinely uses the type of legal services offered for business purposes [ABA only].
Priority: HIGH
When CAN a lawyer pay another person/entity for recommending the lawyer’s services?
A lawyer may:
Pay reasonable costs of permitted advertisements;
Pay usual charges of a legal service plan or approved lawyer referral service;
Pay for a law practice; OR
Give nominal gifts as an expression of appreciation – notintended/expected to be compensation for recommending the lawyer’s services.
Priority: Medium
Can a lawyer enter into a business deal
with a non-lawyer?
YES.
However, non-lawyers CANNOT be partners, shareholders, or officers in a law firm or business that involves the practice of law.
Priority: Medium
What is Professional Misconduct?
To:
Violate ethical rules [or an attempt to – ABA only];
Commit a criminal act that reflects adversely on the honesty, trustworthiness, or fitness as a lawyer;
Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
Engage in conduct that is prejudicial to the administration of justice;
State/imply an ability to improperly influence a govt. agency or official; AND/OR
Knowingly assist a judge or judicial officer in a violation of ethical rules or other law.
Priority: Medium
