Professional Responsibility Outline

 
Berenson Professional Responsibility Outline Fall 2013
 
Model Rule 1.1 – Competency
·         The minimum requirements a lawyer must satisfy to take on a client
o    Knowledge
o    Skill
o    Thoroughness
o    Preparation reasonably necessary
·         Low standard to satisfy
·         Getting sanctioned or disciplined for incompetence is difficult
 
CRPC 3-11- (B) – Competency
·         Minimum requirements
o    Diligence
o    Learning and skills
o    Mental, emotional, and physical ability
 
Mode Rule 1.5 – Fee Sharing
·         Fee must be reasonable
·         Fee sharing is allowed when
1.       The division of fee is proportional to services performed or each lawyer assumes joint responsibility
2.       The client provides written agreement to the fee sharing; AND
3.       The total fee is reasonable
 
Model Rule 1.5(a) – Fees
·         A lawyer shall not charge and unreasonable fee
·         Unreasonable factors
1.       Time and labor required, novelty and difficulty of questions involved, and the skill requisite to perform the legal service properly
2.       Likelihood, if apparent to client, that the acceptance of the particular employment will preclude other employment by the lawyer
3.       Fee customarily charged in the locality for similar legal services
4.       Amount involved and the results obtained
5.       Time limitations imposed by the client or circumstances
6.       Nature and length of the professional relationship w/ the client
7.       Experience, reputation, and ability of the lawyer or lawyers performing the services; AND
8.       Whether the fee is fixed or contingent
a.       Contingent fees are not allowed in
                                                                           i.      Domestic relations matters
                                                                          ii.      Representing a D in a criminal case
·         If an attorney is getting paid by stock instead of money
o    Still analyze if it is reasonable
o    Typically ownership interest of 5-10% is ok but anything more could mean the attorney could have a conflict of interest
§  Low levels of ownership have little opportunity for an attorney to have conflict of interest
 
CRPC 2-200 – Fee Sharing
·         Fee sharing is allowed when
1.       The client provides written agreement to the fee sharing; AND
2.       The total fee is reasonable
 
Cal. Bus. And Pro. Code §6148(b) –
·         All bills rendered by an attorney to a client shall clearly state the basis thereof
·         Bills for the fee portion of the bill shall include
o    Amount
o    Rate
o    Basis for calculation or other method of determination of fees and costs
·         Bills for cost and expense portion shall clearly ID costs and expenses incurred and amount
·         Upon request by client, attorney shall provide bill to client no later than 10 days following the request unless the attorney has provided bill to the client w/in 31 days prior to the request, in which case the attorney may provide a bill to the client no later than 31 days following the date the most recent bill was provided
·         The client is entitled to make similar requests at intervals of no less than 30 days following the initial request
 
Legal Malpractice –
·         Must show
o    Duty
§  Would reasonably competent lawyer in the attorney’s place have done the same thing?
o    Breach
o    Causation
§  P must show that lawyers malpractice deprived them of something
·         Ex. If this case had been file w/in a timely manner and Ann lost anyways b/c D had viable defense therefore P would not have won anything anyways, P was not deprived of anything
o    Damages
 
 
Model Rule 1.5(b) – Fees cont.
·         Fee agreement should preferably be in writing
 
Model Rule 1.5(c) – Fees cont.
·         Contingent fee agreements MUST be in writing
 
Cal. Bus. & Prof. Code – Fees
·         Contingent fee agreements must be in writing
·         Any fee arrangement where the fee is expected to exceed $1000 is required to be in writing
 
Model Rule 1.4 (b) – Communication
·         A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation
o    More honesty up front w/ clients about things like your inexperience then they are less likely to sue you for malpractice
 
Model Rule 6.2 – Court appointed representation
·         A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good cause such as
1.       The representation will result in a violation of the rules
2.       Unreasonably financial burden on the lawyer
3.       Client or cause is so repugnant to the lawyer that it will impair the representation
 
Cal. Bus. And Prof. Code – Client Selection
·         A lawyer shall never reject, for any consideration personal to him or herself, the cause of the defenseless or oppressed
 
 
Model Rule 1.2(b) – Client-lawyer relationship
·         A lawyers representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities
 
Model Rule 6.1 – Pro Bono Representation
·         Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should aspire to render at least 50 hours of pro bono legal services per year.
o    Should aspire
§  Means a lawyer cannot be disciplined for failing to satisfy this obligation b/c it is not required
o    What counts as pro bono?
§  Substantial amount of 50 hours should be devoted to
·         Persons of limited means; or
·         Charitable, religious, civil, community, govn’tal and education organization in matters designed primarily to address the needs of