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.
Solicitation: Accident Victims
A lawyer cannot contact an accident victim less than 30 days after the accident.
Solicitation: Advertising and Mailings
Advertising / mailing is generally ok as long as:
1) You state the lawyers background and experience;
2) The name of the lawyer and location of his practice is given;
3) No false, misleading or deceptive information;
4) No guaranties about the outcome;
5) Cannot reference areas of law that you don’t practice;
6) Can talk about specialized expertise or knowledge if certified;
7) For mail, lower left part must say in red ink “ADVERTISEMENT”
8) Don’t talk about other lawyers or past results that are not verifiable
9) Testimonials can’t be from a person not qualified to give the same, not of their experience, and there must be a disclaimer stating that results may differ
Professionalism of Lawyer
Lawyer at all times must act in a professional, dignified and courteous manner.
-Must be respectful, can’t be rude.
-In dealing with the judge or opposing counsel, must always act with integrity, be reasonable w/ time and play fair.
-Cannot do anything to threaten, harass or embarrass.
Professionalism: Motions and Pleadings
Pleadings must be:
1) based on fact;
2) contain no frivolous claims; and
3) not cause any undue delay.
Professionalism: Independence
Laywer must always be independent.
-Should not be persuaded to act in a certain way by a client (i.e., can’t be influenced)
-Always must maintain independence; be truthful to justice system.
Confidentiality
A lawyer must always maintain confidentiality. (unless a client consents to waiving the same)
-This lasts forever (even after death of client)
-Must be maintained at all costs UNLESS lawyer knows client is going to commit a crime or cause great bodily injury or death (lawyer has a duty to report)
-A lawyer cannot assist or knowingly help a client commit a crime
Duty of Loyalty to the Client
Lawyer must always maintain his duty of loyalty to the client (every decision / act; no self-dealing).
Duty of Competency
Lawyer must maintain basic skills, knowledge, preparation.
-Lawyer is assumed to be competent in whichever area of law that he practices in
-If the lawyer doesn’t have experience and doesn’t feel he can learn in time that area of the law, then he can’t represent person or must retain assistance from a more experienced attorney
