Professional Responsibility Outline

Richowsky
Professional Responsibility Outline
Fall 2012
 
 
Begin with Reading #8
I.                   Reading 8
A.     Rule 1.5: Fees  
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
B.     Merry-Go-Round (contingency fee agreements)
a.       They settled the night before the trial for the full $185 million and Snyder and Wiener wanted to collect their $71.2 million.
b.      Section 328(a)- allows for the approval of contingency fees in advance rendering of legal services. Must have reasonable terms and conditions (ruled it was reasonable under 328). Developments in the case must have been capable of anticipation. Size of the agreement must be predictable.
C.     Somuah v. Flachs
a.       Rationale: There are two reasons why an attorney is discharges
·         Attorney commits serious misconduct- not entitled to a fee (if the form is invalid, or; if the attorney’s representation violates the professional rules of responsibility).
·         Attorney acts competently and client in good faith was dissatisfied with the attorney- entitled to compensation.
b.      To determine reasonable Value of Legal Services look to Rule 1.5: (1)-(8).
c.       Attorney does not have to wait until the contingency is met.
d.      RULE 1.5(e) if violated the court should look at:
·         The nature of the violation
·         How the violation came about
·         Extent to which the parties acted in good faith
·         Whether the lawyers are equally culpable
·         Whether the client would be harmed in enforcing the agreement
·         Any other relevant conditions.
e.       Rule 1.5 (e)- Fee Splitting. Can do it if:
·         Division must be in proportion to the work done
·         Client must be notified
·         Must be reasonable
f.       Arguments for why Rule 1.5 isn’t violated:
·         he did legal services
·         was jointly responsible for the case
·         was listed on the pleadings
·         participated in drafting complaints which listed him as co-counsel
·         There was a retainer agreements for co-counsel.
·         kept accounting of his own time
·         All tasks were preformed properly.
g.      Question 12- overarching theme is that fees must be reasonable.
II.                Reading 9
A.    Rule 5.4- Professional Independence of a lawyer
B.     Rule 5.7- Responsibilities Regarding Law-Related Services
C.     Post v. Bregman-
a.       RULE 1.5(e) if violated the court should look at:
·         The nature of the violation
·         How the violation came about
·         Extent to which the parties acted in good faith
·         Whether the lawyers are equally culpable
·         Whether the client would be harmed in enforcing the agreement
·         Any other relevant conditions.
b.      Rule 1.5 (e)- Fee Splitting. Can do it if:
·         Division must be in proportion to the work done
·         Client must be notified
·         Must be reasonable
c.       Arguments for why Rule 1.5 isn’t violated:
·         he did legal services
·         was jointly responsible for the case
·         was listed on the pleadings
·         participated in drafting complaints which listed him as co-counsel
·         There was a retainer agreements for co-counsel.
·         kept accounting of his own time
·         All tasks were preformed properly.
 
D.    Blondell v. Littlepage- fee splitting
a.       Lead counsel didn’t owe a duty which would subject lead counsel to fraud or negligence claim
b.      Lead counsel did not violate implied duty of good faith and fair dealing with respect to the fee-sharing agreement with co-counsel
c.       Fee-sharing agreement did not create joint venture
d.      Lead counsel could not have tortuously interfered with co-counsel’s contract with clients to which she was also a party
E.     Questions 13-15 (need client’s consent).
 
III.             Reading 10
A.    Rule 1.6- Confidentiality
a.       Implied authority would be telling the insurance company- some clients may not want to disclose to those company.
b.      A lawyer may reveal pursuant to a court order.
c.       Only has MAY not MUST disclosure rule to prevent:
·         Bodily harm
·         Reasonably certain death
d.      Enron case changed the rules- attorneys said they knew about the fraud but they were not able to disclose the information.
e.       Can disclose if they are suing the lawyer’s services to commit the fraud.
f.       Controversy between lawyer and the client- are allowed to defend yourself in a dispute.
B.     Rule 1.13- Organization as Client- Organizational Crimes
a.       If you know information that someone is doing something to destroy an organization they may tell if they believe its reasonably necessary.
b.      Go to the board of directors
c.       If the highest authority says it’s not a problem then you should take remedial action that is necessary, which MAY include confidentiality ONLY IF the board has acted in the interest of its own members.
C.    Rule 1.18- Duties to Prospective Client
a.       Discusses the possibility to entering into a attorney client relationship but does not hire attorney
b.      A lawyer who has discussions shall not reveal information that was learned in the consultation.
D.     Random Notes: 
a.       Differences in rules between states.
b.      Different from attorney client privilege- not an evidentiary/testimonial privilege
c.       Professional standard v. Evidentiary Standard.
·         Violation can occur anywhere with anyone around
·         Does not apply if there is a third person in the room
·         Evidentiary privilege only applies to what the client and lawyer tells each other, but the ethical obligation can be violated even when you hear things from other people. More broad than evidentiary standard.
·         Respect the privacy rights of someone else.
·         Must be effective as counsel- the more you know the better you can defend someone.
·         Confidentiality encourages people to see a lawyer.
E.     Questions 16-23
IV.             Reading 11- October 15th
A.    Nix v. Whiteside- (candor towards the tribunal)
a.       Man told counsel he was going to lie on the stand.
b.      Holding- the respondent is guaranteed the right to testify, but not guaranteed the right to falsely testify. The constitutional right of the accused was not violated (rule 3.3). State constitutional protection.
c.       Strickland Standard- for a client to be deprived of effective counsel the respondent must show two things: (must have the client’s best interest at heart, but nothing illegal)
·         Serious attorney error-
·         Prejudice- no prejudice because a different verdict would not have been reached if he was allowed to testify.
d.      Discusses the Model Code of Professional Responsibility: A- a lawyer shall not: (4) knowingly use perjured testimony or false evidence; (7) counsel assist his client in conduct that the lawyer knows to be illegal.
D.     Questions 24-25 – (If you have a reasonable belief then you don’t need to disclose; if you “know” you must disclose).
 
V.                Reading 12- October 20th
A.    Rule 1.8- Conflict of Interest
(a) A lawyer shall not enter into a business transaction with a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationsh