Professional Responsibility (Grossman) Flashcards
What is a reasonable fee?
Determining whether a fee is “reasonable” depends on:
1) What’s the customary fee in the community for similar work;
2) Time and amount of work involved;
3) Experience, reputation and ability of the lawyer.
Receiving Fees from 3rd Persons (someone other than client)
You can’t accept a free from a 3rd person unless:
1) Client gives consent;
2) No interference with the attorney-client relationship (i.e., the decision-making / loyalty to the client); and
3) Client confidentiality is maintained.
Attorney’s Fees (can a court order attorney’s fees?)
Generally no, UNLESS:
1) By statute;
2) By contract; or
3) The court is ordering sanctions.
Contingency Fees
-Must be in writing
-NOT allowed in family law or criminal law
-Must stipulate the following in writing:
1) How fees are calculated
2) Fee can’t be more than 15-40%
3) Must delineate fee % is case settles vs. goes to trial
4) What expenses are deducted and when they’re deducted
5) Before the agreement is signed, the client must be given a statement of his rights
6) Client has 3 days to retract after signing.
Referral Fees
Only allowed if:
1) the amount is divided based on the proportion of the amount of work done by each lawyer; or
2) there’s a written agreement with the client that there’s a joint responsibility for the representation and the agreement sets out the division that will be made.
-REMEMBER: CANNOT share fees with a non-lawyer.
Trust Accounts (holding client fees)
Once given fees, all property must be kept separate.
-No commingling with the lawyer’s personal or firm funds.
-The account name must say “TRUST ACCOUNT”
Can a lawyer give financial help to clients?
No - but a lawyer may advance court costs and expenses.
-Otherwise, no financial assistance is allowed.
Conflict of Interest
A lawyer may not represent a client if doing so would be:
1) Directly adverse to another client; or
2) If the lawyer’s independent judgment would be materially limited by his responsibility to another client.
Exception to Conflict of Interest
1) The lawyer reasonably believes his independent judgment won’t be adversely affected; and
2) The client gives INFORMED CONSENT IN WRITING or clearly stated at a hearing.
Business Transactions w/ a Client
A lawyer cannot enter into a business transaction or take a financial interest adverse to a client UNLESS:
1) the transaction is fair and reasonable;
2) there’s full disclosure in writing;
3) the client consents in writing after having a reasonable opportunity to have independent counsel review the terms.
Taking an interest in the case
A lawyer may NOT take a proprietary interest in the case itself but MAY secure a lien in the cause of action to secure his fees.
Conflict of Interest relating to a Former Client
A lawyer who represented a client must not thereafter represent another client in the SAME OR SUBSTANTIALLY RELATED MATTER in which that client’s interests are MATERIALLY ADVERSE to the former client.
UNLESS the former client gives INFORMED CONSENT.
Imputed Disqualification
If a lawyer has a conflict of interest with a present or former client, then that client is imputed to rest of the law firm.
UNLESS the lawyer leaves the firm, then the firm may represent a client whose interests are adverse to the former client (who left w/ a lawyer);
UNLESS it’s the same or substantially related matter and the remaining lawyer at the firm has confidential information on the former client.
Multiple clients want to be represented by the same lawyer
They must be made aware of the implications of doing so (i.e., potential conflicts) and give informed consent.
Solicitation
A lawyer cannot solicit business from a prospective client with whom they have no family or prior professional relationship with, when the lawyer’s significant motive is pecuniary gain.
