Profes. Respons Flashcards
Contingency Agreement (Writing Requriement)
ABA & CA
(1) signed by the client (CA: lawyer must sign as well)
(2) include the allocation of expenses; and
(3) outline the scope of the representation.
Reasonable V. Unconscionable
ABA, the reasonableness of fee determined by:
(1) the complexity of the case
(2) preclusion of other employment
(3) the expertise and reputation of the lawyer,
(4) actual outcome achieved, structure of the fee (fixed v. contingent),
(5) community standards for these kinds of cases.
CA Adds
(1) lawyer committed fraud or misrepresentation in making the agreement
(2) relative sophistication between lawyer and client and the existence of a preexisting relationship.
Duty of Competence
ABA: lawyer must act with the required knowledge, skill, thoroughness, and preparation of a reasonable lawyer to provide services to the client
CA: lawyer must not intentionally, recklessly, with gross negligence or repeatedly fail to provide competent representation to a client.
Duty of Diligence
ABA: lawyer must act with the reasonable promptness to provide services, managing their workload
CA: lawyer must not intentionally, recklessly, with gross negligence or repeatedly fail to provide diligent representation to a client.
Settling Claims of Malpractice
ABA: lawyer is permitted to do this only if the client is represented by independent counsel when they make this release.
CA: Lawyer is strictly prohibited
Duty of Candor
Both ABA & CA
Duty to disclose law that is contrary to the client’s position.
BUT not required to disclose facts that are not helpful to the client.
MUST not offer evidence that he knows to be false or misleading and must seek to rectify any false evidence presented.
Unauthorized Practice of Law
Cannot engage in activities that constitute the practice of law
Can have non-lawyer draft documents , conduct intakes, research BUT LAWYER needs to supervise.
Obtaining Interest in Outcome of Case (PR)
ABA, L cannot obtain a pecuniary interest in the subject matter of a case other than in the case of a contingency fee arrangement or an attorney’s lien.
CA, attorneys’ liens are impermissible.
Duty of Fairness
A owe duty of fairness to opponent (e.g. must not be dishonest, must not contact represented clients)
Duty of Confidentiality
may not disclose anything related to the representation without the client’s consent
CA: “maintain inviolate” the secrets of his client
Referrals amongst other Attorney
ABA, referral fees are prohibited;
CA referral fees are permitted as long as the client gives informed consent and the total fees are not increased due to the referral agreement.
Fee Splitting
ABA
(1) client consents in writing, and
(2) division is proportionate to each lawyer’s services,
(3) total fees are reasonable
CA
(1) client consents in writing (signed by attorney)
(2) client is informed of the identity of other attorney and terms of split
(2) total fees are not increased solely by reason of a division and not unconscionable
