Professional Responsibility Flashcards
Duty to Client upon withdrawal
ABA and CA: A L who withdraws must (1) surrender C’s papers and property but he can keep a copy for his own records; (2) provide C with reasonable notice to allow time to seek other counsel; (3) refund any advanced fees not yet earned.
CA Specific Withdrawal
In addition to the common rules, CA permits withdrawal when: (1) C insists on presenting claims/defenses not supported by GF; (2) C knowingly and freely assents to the term; (3) L’s mental/physical condition make it difficult to continue; (4) continuation likely to result in violation of the CA rules; (5) or L unable to work w/ co-counsel.
Additional ABA Specific Withdrawal
(1) C has used L’s services to perpetuate crime/fraud; (2) C insists on taking action L considers repugnant or w/ which L has a fundamental disagreement; (3) L can do so w/o material adverse effect on the interest of C; (4) or Representation will result in an unreasonable financial burden on the L.
Permissive Withdrawal
ABA and CA: L may withdrawal from representation if: (1) C insists on action involving L’s services that is fraudulent or crime (2) C used services to per crime/fraud; (3) rep has been rendered unreasonably difficult by C, (4) C fails to substantially fulfill an obligation to the L regarding the L’s services and has been given reasonable warning that L will withdraw unless the obligation is fulfilled.
Fee Splitting CA
(1) Ls enter into a written agreement to divide the fee; (2) C consents in writing after full written disclosure that fees will be divided along w/ the identity of Ls and terms of the division; (3) the total fee is not increased simply bc the division of fees.
Fee Splitting ABA
Division of fees between Ls not in the same firm may be made only if: (1) Division is proportionate to the services performed by each L or each L assumes joint responsibility; (2) C agrees to division in writing and (3) total fee is reasonable.
Contingency Fee Agt Rules
ABA and CA: CFs are not permitted for domestic or criminal cases.
Fees mb: (1) in writing; (2) signed by C; (3) state method by which the fee is tb determined, including percentage in the event of a settlement, trial, appeal; (4) state the litigation expenses tb deducted from recovery; (5) state whether such expenses will be deducted before or after the CF is calculated.
Duty to Avoid Fee Misunderstandings (ABA)
All fees mb reasonable considering: (1) time limitations imposed by the C or circumstances: (2) experience, reputation, and ability of the L; (3) nature and length of relationship w/ C; (4) time and labor, novelty and difficulty, and skill required; (5) fee customarily charged in locality for similar services; (6) likelihood that acceptance will preclude other Empl; (7) amount involved and results obtained; (8) the fee is contingent or fixed.
No writing requirement for regular fee agts
No arbitration requirement, ABA encourages it
Duty to Communicate (ABA)
L shall promptly inform the C of any decision that affects C’s informed consent as well as reasonably consult w/ the C and keep him informed of the status of the case, including any settlements and plea offers and promptly respond to C communications and reasonable requests for info.
Duty to Communicate CA Exception
CA allows L to delay transmission of info if the L reas believes that the C would be likely to react in a way that may cause imminent harm to C or others.
Duty of Confidentiality
ABA and CA: L shall not reveal info relating to the representation of a C unless among other limited exceptions, the C gives informed consent.
ABA Exceptions: (1) IC; (2) disclosure is impliedly authorized; (3) reasonably believes necessary to prevent death or substantial bodily harm; (4) prevent crime/fraud; (5) comply with court order; (6) secure legal advice; (7) establish a claim or defense
CA Exceptions: Necessary to prevent crime or death or substantial bodily harm L must: (1) First make a GF effort to persuade the C not to commit the crim act; (2) Inform the C of the lawyer’s ability to reveal the info; (3) Only reveal as much info as nec to prevent the crime.
Exception to Concurrent Interest
A L still may represent a C despite a concurrent conflict if: (1) L reas believes that he will be able to provide competent/diligent representation to each affected C w/o adverse affect; (2) representation is not prohibited by law; (3) Cs are not asserting a claim against each other in the same litigation; (4) each C gives written IC.
Concurrent Conflict of Interest
ABA and CA: A concurrent COI exists if there is a significant risk that the representation of one or more Cs will be materially limited by L’s responsibilities to a former C of L.
Duty of Loyalty
ABA and CA: L has a duty of loyalty to his C that requires that L put the interest of his C above all other interests and avoid any actual or potential COIs.
Duty of Competence
ABA and CA: L shall represent C with legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
