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Legal Malpractice Relationship
Proficiency required - can research but cannot charge Client for excess time researching that an experienced lawyer would know. May associate with other expert Lawyers with client consent.
Required Standard - Standard is usually that of a general practitioner unless Lawyer is holding out as an expert, thereby creating a higher performance duty.
Emergency Situation - only best effort required under emergency.
Maintaining Competence - Must keep your specialized knowledge current.
Legal Malpractice Relationship - Breach of contract, fiduciary duty, or malpractice claims, but ethical rules do not establish legal standard.
Scope of Representation and Authority Allocation
Counsel a Crime or Fraud
Client Urging MRPC Violation
Limit of Representation
Representation Objectives - Client determines representation objectives (major outcome-determinant decisions).
Lawyer's Decisions - Means and procedural tactics with Client's approval.
Client's Decisions - SWET - Client has exclusive decision authority whether to accept or reject settlement offers, waive jury trial, enter a plea, or testify in person at trial.
No Endorsement - No endorsement of client's political, social, or moral positions by being client's attorney.
Counsel a Crime or Fraud - lawyer shall not assist in ongoing unlawful activity (aiding and abetting). However may give legal help for a past offense.
Client Urging MRPC Violation - Consult with client and must withdraw
Client Authority - In some states, a lawyer shall not willfully purport to act as a lawyer for any person without the prior authoritiy of that person.
Limit of Representation - Lawyer may be limited to a particular discrete aspect of a matter, such as only the trial court representation, but not an appeal. Scope restriction must be reasonable and client must give informed consent.
Dilatory Practices - No unreasonable delay and/or procrastination
Legal Rules - Court deadlines control. Usually failure to file a claim is automatic malpractice.
Representation Completion - Lawyer should inform Client, preferably in writing.
Written v. Oral
Communication - must keep Client informed in reasonable detail.
Informative Explanation - Client should participate in significant decisions
Written v. Oral - representation letters about status of representation are recommended
- Special Situations - Two exceptions ot the communicaiton duty
- - Court Order or Rules - May limit the lawyer from sharing sensitive imformation with client. (Ex: opponents' trade secrets)
- - Client Imprudent Reaction - If Client will cause harm to him or herself
Communicate Mistakes - Lawyer must communicate mistakes
Communicate Termination - when relationship terminates so it is clear that there is no Client expecation for future monitoring by Lawyer
Fee Agreement Required
- New Client
- Substantially Different
- Change in Circumstances
- External Fee Split
- Writing Request
- Withdrawal Writing
Client Fee Objection
Fees - lawyer may not charge excessive fees. All charges that are the responsibility of the client shall not be unreasonable.
- Reasonable Factors (reasonableness of a fee) SANTA REBER:
- - Skill Required - A complex case may cost more than another type of case.
- - Amount Involved - Value addded is currently a favored justification for higher fees. Ex: PI case for 1 million could cost more than a smaller amount.
- - Novelty and Difficulty - Novelty and difficulty in prevailing could effect cost.
- - Time Involved/Opportunities Foregone (other potential clients) - Time and labor factors are probably the most widely accepted factors.
- - Average Customary Fee - Amount normally charged in community
- - Relationship - Nature and length of professional relationship.
- - Expertise
- - Basis of Fee - Whether hte fee is fixed, hourly, or contingent is a factor
- - Experience/Reputation
- - Result - winning attorneys are usually paid more
Double Billing - Improper to double bill the same time or work product to two clients.
- Fee Agreement Required
- - Includes - Material elements of the engagement and billing practices. Rule does not preclude an oral agreement as long as the lawyer is able to prove that the oral agreement gave the required reasonable and fair disclosure.
- - New Client - Agreement preferably be communicated before or within a reasonable time after commencing the representation
- - Substantially Different - if services or fee details are substantially different from a previously existing arrangement then must be communicated
- - Change in Circumstances - developments occur that make an earlier fee estimate impossible should be timely submitted to client.
- - External Fee Split - Client must receive a written fee statement if a fee split involves a lawyer external to the firm. Fee split must be proportional to services performed or both lawyes must assume joint responsibility. No fee splits with non-lawyers
- - Writing Request - Lawyer must communicate fee in writing if client asks for it to be in writing.
- - Withdrawal Writing - If matter is in litigation, a formal motion to withdraw may be necessary. Situations in which withdrawal may be necessary - client's non-payment of fees, failure to provide required information, or expressed intent to defraud the court.
Client Fee Objection - If there was a client fee prepayment, the lawyer is entitled to fair compensation for work performed and the disputed amount should remain in trust pending a resolution. Any disputed portion of client advances and prepayment funs should be left in trust pending a resolution.
Contingency Fee Agreement
Contingency Fee Agreement
Treatment of Costs
Contingency Fee Agreement - If a fixed fee is partially refundable, it is functionally to be classified as a contingent fee.
Writing Requirement - Contingency fees are required to be in writing. Writing should state the method by which the lawyer's fee is to be determined.
Treatment of Costs - Agreement must set forth litigation and other expenses to be deducted from the recovery. In addition, whether such expenses are to be deducted before or after the contingent fee is calculated must be disclosed.
- Prohibited Matters -
- - Domestic Relations - This includes an attempt to secure a dissolution or custody of a child, or the amount of property awarded, alimony, or child support (in a divorce). However, a contingent fee is proper for collection for alimony or support in arrears.
- - Criminal Matter - Contingency fee agreement is improper for criminal cases.
Client Termination - Substantial completion is usually achieved if the lawyer obtains a firm settlement offer in the an amount that the client had approved. If substantial completion has been delivered, a recovery for the reasonable value of the services is allowed.
End of Case - Upon conclusion of a contingency matter, the lawyer must provide the client with a written statement of account. This should itemize the dollar recovery outcome, all chargeable costs, and the calculation of amounts going to both the lawyer and the client.
Division of Fees
In Same Firm
Not in Same Firm
Overall Reasonable Restraint
In Same Firm - No restrictions
- Not in Same Firm - This involves a single fee billing to a client. Two allowed methods of permissive fee splits:
- - Proportional - Fees proportional to services each lawyer performs, or
- - Non-Proportional/Joint Responsibility - non-proportional, but joint responsibility for the whole representation
- - Client Consent - Client must consent to the fee splitting details including the share each lawyer is to receive. Client disclosure must include the inherent material risks and advantages of externally splitting fees and divided responsibility. Client agreement to consent must be confirmed in writing.
Referral Services - External referral fees may be paid only to a bar association or local bar-approved referral service. Any other forwarding, referrals, or commissions on fees may not be paid to any person, even if that person is another lawyer.
Overall Reasonable Restraint