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What are the state sources of regulation?
- 1. Courts
- 2. Bar Association
- 3. Legislature
What are the 3 sources of regulation?
- 1. The state
- 2. federal system
- 3. Regulation by multiple states
What misconduct may be regulated AFTER admission to the bar?
- 1. Attempting to violate a rule
- 2. Assisting or inducing another person to violate a rule
- 3. Using the acts of another to violate a rule
- 4. Engaging in criminal conduct that shows dishonesty, untrustworthiness, or unfitness
- 5. Engaging in conduct that is prejudicial to the admin of justice
- 6. Stating or implying an ability to improperly influence
- 7. Knowingly assisting a judge in conduct that is illegal
A lawyer is subject to discipline for failing to report...
disciplinary violations that raise a substantial question as to the other L/J's honesty, trustworthiness, or fitness as a L/J
Exceptions to duty to report rule
- 1. infor protected by duty of confidentiality
- 2. info gained while serving as member of an approved L's assistance program
- 1. Filing of complaint with state disciplinary authority
- 2. Response to charges
- 3. Investigation by grievance committee
- 4. Hearing
- 5. Review of decision by highest court in state
Is an accused L entitled to procedural due process in disciplinary hearing?
Choice of law in disciplinary proceedings
1. misconduct related to proceeding before a tribunal = rules of jurisdiction where tribunal sits
2. all other misconduct = rules of jurisdiction where misconduct occurred UNLESS the predominant effect of the conduct is some other jurisdiction
Effect of Sanctions in other jurisdictions - Majority view
Sister states accept disciplinary action by one state as conclusive proof of a L's misconduct but are free to impose their own sanctions
Effects of sanctions in other jurisdictions - federal court
Makes indpt evaluation, accepting as competent evidence the L discipline by a state
unauthorized practice by L
A L is subject to discipline for practicing in a jurisdiction w/o being licensed to do so
Permissible types of temporary multi-jurisdictional practices
- 1. Association with local L
- 2. Special permission to practice in local tribunal (pro hac vice)
- 3. Mediation or Arbitration arising out of practice in home state
- 4. Other practice arising out of practice in home state
Permissible types of permanent multi-jurisdictional practice
1. L is salaried EE of her only client (i.e. - in house counsel) BUT to litigate must seek admission pro hac vice
2. legal services are authorized by fed or local law
Consequences of multi-jurisdictional practice
subject to disciplinary rules in both states - where barred and where practicing
Is a L subject to discipline for assisting a nonL to engage in the unauthorized practice of L?
Practice of law includes those activities:
- 1. involving legal knowledge and skill
- 2. which constitutes advice concerning binding legal rights
- 3. traditionally performed by L
It is not unauthorized practice for a nonL to:
1. appear before an agency that permits nonL professionals to do so
2. fill in the blanks on legal forms
Consequences for unauthorized practice
NonL = may be subject to injunction, contempt, and criminal prosecution
L assisting nonL = subject to discipline
Delegating work to nonL assistants
A L MUST supervise delegated work carefully and must be ultimately responsible for the results
Training nonL for law-related work
A L may advise and instruct nonLs whose employment requires a knowledge of law
Helping persons appear pro se
A L may advise persons who wish to appear on their own behalf in a legal matter
May a L assist a suspended or disbarred L do work that constitutes the practice of law?
Nature of the L/C relationship
1. contractual with the terms derived from custom & mutual agreement
When is the L/C relationship created?
- 1. implied assent & reasonable reliance
- 2. court appointments
What is implied assent & reasonable reliance in the creation of L/C relationship?
A person indicates an intent that the L provide a legal service and the L fails to clearly decline representation whereby the person reasonably relies on the representation
reasonableness is a question of fact
When may a L avoid court appointments to represent C?
for good cause
What constitutes good cause regarding L avoiding a court appointment to represent a C?
- 1. result would be violation of rule
- 2. result would be unreasonable financial burden on L
- 3. L personal feelings would prevent her from representing the C effectively
A L must refuse employment when (not take a case):
- 1. C motive is to harass or maliciously injury a person
- 2. case presents a factually or legally frivilous position
- 3. L is incompetent to handle the matter
- 4. L strong personal feelings may impair his ability of effective rep
- 5.L mental or physical condition would materially impair the representation
Duties owed to prospective C
1. protect person's confidential info, including declining rep of others in the same or related matter
2. protect PC property
3. use reasonable care in giving the person legal advice
Is there an ethical obligation to accept unpopular cases?
Yes - a L can fulfill his obligation to assist int he provision of legal services to those in need by accepting a fair share of unpopular matters or indigent or unpopular Cs
When to agree on a fee
early in the relationship, preferably in writing
Factors considered in determining reasonableness of fee
- 1. time/labor required
- 2. novelty/difficulty of questions involved
- 3. skill required
- 4. whether L is precluded from other work
- 5. what other L in community charge
- 6. amount at stake & results obtained
- 7. time limitations
- 8. experience, rep, & ability of L
- 9. whether fee is fixed or contingent
May L require payment in advance?
Yes - L may require fee to be paid in advance but must refund any unearned part of the advance if L is fired or w/draws
L need not return a true retainer fee
May L accept property for service?
Yes - provided that this doesn't involve a proprietary interest in the CoA or subject of litigation
subject to scrutiny to protect C from being taken advantage of
May L make fee agreement that could cut off services in the middle of relationship?
No - this would put the C at a disadvantage
May L accept payment via credit arrangements and security?
Yes - L may permit C to pay a fee by credit card, to finance fees thru bank loans, or to pay by an interest bearing PN
may also use attorney's lien if local law permits
Contingent Fees - definition
L receives his fee only upon favorable resolution for his C...generally a % of the C's recovery
Contingent fees generally
- 1. prohibited in criminal and domestic relations cases
- 2. must be reasonable
- 3. must be in writing
Regarding fee disputes, a L may not use ____ to obtain compensation
- 1. illegal collection methods
- 2. improperly use confidential info
- 3. harass a C
Remedies regarding fee disputes
- 1. filing suit to recover fee
- 2. use a common law or statutory charging lien
- 3. exercise a retaining lien (majority)
- 4. retain disputed amount in C trust account until resolution of dispute
- 5. mediation/arbitration
Is fee splitting permitted?
Generally a L must NOT split fees with another L
Exceptions to prohibition on fee splitting with other Ls
1. L w/in a firm including separation or retirement agreements to a former partner or associate
- -total fee is reasonable;
- -split is in proportion to services performed by each L or some diff proportion if each L assumes joint responsibility; AND
- -C agrees in writing
Are forwarding or referral fees permitted
Not if the referring L neither works on the case nor assumes responsibility for the case
L may set up a reciprocal referral arrangement in which L agrees to refer C to another L or nonL, provided the Cs referred are informed of the arrangement
decisions to be made by C
- 1. settlement offer
- 2. plea
- 3. waive a jury trial
- 4. testify
- 5. appeal
What constitute reasonable circumstances under which L may limit the scope of representation
- 1. disagreement exists b/t L & C about means to be used to reach the C's objectives
- 2. C insists on the L's assistance in violating a law or ethical rule
- 3. L discovers that a C has begun an illegal course of action and conduct is continuing
Who has control over objectives?
Who has control over means by which objectives are carried out?
L duties regarding C with diminished capacity
-duty to maintain normal L/C relationship with the C
When is protective action and appointment of guardian for C with diminished capacity appropriate?
when C faces a substantial risk of physical, financial, or other harm, L may take reasonable action to protect C
L has implied authority in these circumstances to reveal the C's confidential info to the extent necessary to protect the C
Emergency legal assistance to nonC with seriously diminished capacity
- -facing imminent and irreparable harm to her health, safety, or financial interest & consults a L,
- - L may take reasonable steps on behalf of the person even if a L/C relationship hasn't been established
- -L reasonably believes person has no other representative
L duties regarding emergency legal assistance to nonC with seriously diminished capacity
- -same duties as would with respect to a
-normally L wouldn't seek compensation
When communicating with a C, a L MUST:
- 1. promptly inform C of any decision that requires the C's informed consent
- 2. keep C reasonably informed about status of the matter and the means to be used to accomplish the C objectives
- 3. respond promptly when C makes a reasonable request for info
- 4. consult with C if C expects the L to do something illegal or unethical
the amount and kind of info L should give to the C depends on...
the C's situation
if L regularly reps a C, the 2 may work out a convenient arrangement for occasional reporting of routine developments
When may L withhold info from C?
1. C would be likely to react imprudently to an immediate communication
2. Court rule or order forbids L from sharing info with C
3 ways in which L/C relationship may terminate prior to conclusion of the matter
- 1. C fires L
- 2. situations in which L must withdraw
- 3. situations in which L may withdraw
When may C fire attorney?
at any time, with or w/o cause
if C fires L, what is C liable for?
quantum meruit for the reasonable value of the work done
when MUST an L withdraw?
- 1. L mental/physical condition would make it unreasonable for him to continue representing the C
- 2. continued rep would require the L to violate a rule or law
When MAY an L withdraw?
- 1. no material adverse effect on C interests
- 2. C consents
When may L withdraw even if material adversity exists?
- 1.C persists in criminal or fraudulent conduct
- 2. C has used L services to commit a past crime or fraud
- 3. C objective is repungant or against L beliefs
- 4. C breaks his promise to L
- 5. rep imposes an unreasonable $ burden on L
- 6. C won't cooperate in the rep
- 7. other good cause
L duties upon termination of representation
- 1. L must give C reasonable notice of withdrawl & chance to get another L
- 2. refund any advance on fees not yet earned & expenses not yet spent
- 3. turn over all papers & property to which C is entitled
Duty of competence includes:
- 1. legal knowledge & skill
- 2. throoughness & preparation
- 3. maintaining competence thru CLEs
Factors for determining legal knowledge & skill in competence
- 1. complexity & specialized nature of the matter
- 2. L general experience
- 3. L training & experience in the field in question
- 4. amount of preparation & study the L will give to the matter
- 5. whether possible for L to refer the matter to, or consult with, another competent L
May a L accept representation if the requisite competence can be achieved by reasonable preparation?
May L not competent in the field assist a C in an emergency situation?
yes but assistance shouldn't exceed what is reasonably necessary to meet the emergency
Once a L takes on a C's matter, the duty of diligence requires:
- 1.acting on C's behalf with reasonable diligence & promptness
- 2. acting with dedication and zeal, taking whatever lawful & ethical steps are available to vindicate the C's cause
- 3. pursuing the matter to completion
- 4. terminating the relationship or acting with required diligence if there is any doubt as to whether the L/C relationship exists
additional diligence duty for solo practitioners
planning for his untimely death or disability by designating another competent L to review the C's files and determine whether protective action is required
How many violations are sufficient to impose discipline?
a single incident of misconduct
How does malpractice action differ from a disciplinary matter?
- 1. forum (civil court v. disciplinary tribunal)
- 2. adversary (injured party v. state bar)
- 3. purpose (compensation v. punishment)
Does violation of an ethics rule automatically mean L has committed malpractice?
Does violation of an ethics rule create a presumption of malpractice?
Is violation of an ethics rule relevant evidence of malpractice?
Theories of malpractice liability
- 1. intentional tort
- 2. breach of fiduciary duty
- 3. breach of K
- 4. negligence
When may L be liable for negligence of others?
L may be held liable for injuries caused by a negligent legal secretary, law clerk, or other person acting w/in the scope of his employment
Is malpractice insurance required?
May L contract with C to limit malpractice liability?
not unless the C is indptly rep in making the K
When may a L settle a pending or potential malpractice claim with an unrepresented C or former C?
After advising that person, in writing, to seek indpt advice about the settlement and giving that person time to seek that advice
May a L who has breached a duty to his C escape discipline by reimbursing the C for any loss?