Doodees Flashcards
(33 cards)
What is the included in the Duty to Communicate?
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the decision, and shall
(1) promptly inform of decision requiring client’s informed consent
• must inform of SETTLEMENT OFFERS; and for JOINT CLIENTS, must inform each client of settlement offer and make sure the clients agree on the division of the settlement before accepting
(2) reasonably consult about means
(3) keep client reasonably informed about status of matter
(4) promptly comply w/ reasonable requests for information
(5) consult client about limitations on lawyer’s conduct
What should a lawyer do with settlement offers for joint clients?
for JOINT CLIENTS, must inform each client of settlement offer and make sure the clients agree on the division of the settlement before accepting
What are some things included in the fees and other duties?
- financial integrity
- other duties to the profession
- duties to 3d parties
- duties to the adversary
- duties to the court
Noncontingent fees
difference b/w ABA and CA?
ABA Rules = fees must be reasonable
(1) shall be communicated to the client preferably in writing
- exception = regular client on same basis/rate
(2) before/within a reasonable time after commencing representation
(3) any changes in basis/rate must be communicated to the client
CA Rules = fees cannot be unconscionable
(1) writing required
Exceptions:
-
Arbitration to Settle Fee Disputes
ABA Rules = encouraged
- ABA encourages attys to submit to arbitration to settle fee disputes but does not require arbitration
CA Rules = required if client requests
- CA requires an atty to submit to arbitration to settle fee disputes if a client requests it
ABA Model Rules: Contingent Fees
Contingent fees are agreements in which the lawyer and client agree that the lawyer’s fee will be paid out in any recovery the client receives
(1) must be in writing;
(2) signed by the client; and
(3) state the method by which the fee is to be determined
- percentage to lawyer
- expenses to be deducted from recovery
- expenses deducted before/after contingent fee calculation; and
- EXPENSES CLIENT WILL BE LIABLE FOR regardless of the outcome
CA Rules: Contingent Fees
(1) must be in writing;
(2) signed by the client;
(3) state tha lawyer’s percentage is NEGOTIABLE
(4) state the method by which the fee is to be determined
- percentage to lawyer
- expenses to be deducted from recovery
- expenses deducted before/after contingent fee calculation; and
- how NON-COVERED EXPENSES WILL BE PAID
Charging liens allowed
When are Contingent Fees prohibited?
(1) Domestic relations cases
- ABA Rules = prohibited
- CA Rules = OK unless it encourages breakup of otherwise salvageable marriage
(2) Criminal cases
- ABA Rules = prohibited
- CA Rules = silent on the subject
Contingent Fees: Termination before Recovery (in quantum meruit)
If the atty-client relationship is terminated before the judgment is awarded in favor of the client, an atty may recover fees IN PROPORTION to the work completed by the atty prior to termination
Fee Splitting with Attys
Within firm = OK
ABA Rules (for outisde firm) = permitted only if
(1) total fee reasonable
(2) written disclosure and consent; and
(3) proportional to work done (in quantum meruit) - or some other proportion if each lawyer assumes joint responsibility for the representation
CA Rules (for outside firm) = permitted only if
(1) total fee reasonable; and
(2) written disclosure and consent
Fee Splitting w/ Non-attys
General rule = prohibited
- considered a duty to both uphold the dignity of the profession and a duty to protect the public
Exceptions
- death benefits - paid to a deceased lawyer’s heirs for her work
- EEs - through compensation or pension benefits
- non-profit organization that employed/recommended atty (may share ct awarded legal fees)
- qualified lawyer referral services
Referral Fees
ABA Rules = prohibited
- lawyer may also not pay a “referral” fee to any other lawyer. that is to say that a lawyer may only be paid a portion of a fee when the lawyer has actually done some portion of work on the case
CA Rules = permitted if
(1) arrangement disclosed to the client; and
(2) no extra amount charged to client
in CA, a referral is not a per se violation of ethical rules, so long as the arrangement is disclosed to the client and no extra amount is charged to the client
Duty to accept representation
No duty to accept representation - gen rule is that atty has no duty to accept representation; an atty is free to accept/reject any case
Exceptions: • court appointed - atty has an ethical duty to accept representation if the atty was appointed by the ct unless this is good cause good cause? - violate law/ethical rule - unreasonable financial burden; or - personal feelings
• defenseless/oppressed - an atty should accept the cases of the defenseless/oppressed if the only reason to refuse is selfish
• pro bono work
- ABA encourages 50 hrs of pro bono work per year for indigent clients
Duty to Reject Representation
Duty to reject representation
• violates law or ethical rule
• π’s motive = harass or maliciously injure
• frivolous claim/defense
- exception: law against lawyer’s position- good faith effort to change the law w/ representation OK
• lawyer incompetent - lawyer w/o prior experience in a field of practice may still take a case as long as the lawyer either
(1) becomes educated w/o undue expense/delay to the client; or
(2) associates w/ counsel competent in the area
- personal feelings - would prevent effective representation
- atty’s mental/physical condition - will materially impair representation
Mandatory Withdrawal
Court permission required in litigation - an atty MUST ask for the ct’s permission to withdraw if the matter is already in litigation
reasonable for mandatory withdrawal
- atty’s mental or physical condition
- violate law or ethical duty
- harass/delay
- client fires atty
Permissive Withdrawal
Court permission required in litigation - an atty MAY ask for the ct’s permission to withdraw if the matter is already in litigation
Reasons for permissive withdrawal
• client consents; or
• no material adverse effect on client
However, even if the withdrawal will adversely affect the client, the atty may withdraw if there is good cause.
- failure to pay fees/expenses - warning required before withdrawal
- criminal/fraudulent conduct by client
- client’s object morally repugnant/imprudent
- unreasonable financial burden on atty
- prior legal services used to commit crimes/fraud
- client freely assents to atty’s withdrawl
- client will not cooperate
Procedure for permissive withdrawal
(1) timely notice;
(2) reasonable opportunity to find another lawyer; and
(3) must promptly return
- unspent advances for fees and expenses
- material papers (for continuing representation w/ another lawyer)
- client’s property
Scope of Representation
Atty’s decisions = MEANS
- an atty has the authority to make most of the decisions relating to the means and methods by which the client’s objectives and goals will be achieved
Client's decisions = ENDS - client has the authority to make any decisions regarding the ends (i.e. the objective and goals) of the litigation • decision to sue in civil cases • accepting settlement offers • pleas in criminal cases • jury trial waiver in criminal cases • testify in criminal cases • decision to appeal
Agreements to limit scope - OK if reasonable under the circumstances and informed client consent
Duties of Prosecutors
(1) make timely disclosure of potentially exculpatory to defense
- negate the guilty of the accused or mitigate the offense; or
- mitigate sentencing
(2) refrain from making public statements w/ substantial likelihood of heightening public condemnation of the accused
(3) to seek justice
(4) higher ethical obligations - than criminal defense or civil attys
(5) must have probable cause to prosecute
Duty to Preserve the Impartiality of the Tribunal
(1) Conduct prejudicial to the administration of justice
(2) Stating/implying an ability to improperly influence gov agency/ official
(3) Communications w/ jurors
• pre-trial = communications w/ jury panel prohibited
• during trial = communications during trial prohibited unless official court proceedings
• post trial = communications permitted unless:
- prohibited by law or court order
- desire not to communicate made known to lawyer; or
- communication involves misrepresentation, coercion, duress, or harassment
Chicanery at Trial
During trial, a lawyer shall not
(1) refer to irrelevant/inadmissible material
(2) assert personal knowledge of contested facts - except when testifying as a witness; OR
(3) state personal opinion as to
- justness of cause
- credibility of a witness
- culpability of civil litigant; or
- guilt or innocence of an accused
Duty to Expedite Cases
ABA Rules = atty has an affirmative duty to expedite cases
CA Rules = atty must not delay cases to harass an adversary or for the atty’s personal gain or convenience
Discovery Abuse
In pretrial procedure, a lawyer shall NOT
(1) make a frivolous discovery request; or
(2) fail to reasonably comply w/ discovery requests of adversary
Dealings w/ the Press
(1) must avoid public statements w/ substantial likelihood of materially prejudicing case
(2) prosecutors - must not make comments that have a substantial likelihood of heightening a public condemnation of the accused
Exceptions:
- public records
- public warnings
- statements required to protect client from substantially undue prejudice from recent publicity not self-initiated
