PR AREA Advertising
Solicitation
Fee Agreements
ABA CA DUTY TO ADVERTISE TRUTHFULLY AND AVOID SOLICITATION Advertising must not raise unjustified Presumes improper any ad which expectations or make unverifiable contains guarantees, warranties or comparisons. predictions of a result. Testimonials may not be used unless there is an express disclaimer that it is not a guarantee, warranty or prediction. A lawyer must not seek fee-paying work Communication to potential Cs are by initiating a personal or live improper if it was made at the scene of telephone contact with a prospective an accident or en route to a medical client with whom she has no prior facility or when L should know the professional, personal, or familial potential C is not in the relationship. Must not take advantage physical/mental state to exercise of individuals who are in a vulnerable reasonable judgment. state. DUTY TO ENTER INTO REASONABLE FEE AGREEMENTS Should include 1) How the fee is CA also requires the req’t to be in calculated, 2) services are covered, writing UNLESS: the fee is under 3) and duties of L and C. $1000, corporate client, routine services for a routine client or an in an emergency or otherwise impractical. Contingent fees may NOT be used in criminal cases or domestic relations cases, where the contingency is securing of a divorce or the amount of the property settlement. CA also requires that the agr’t state how work not covered by the fee will be paid, and that L’s fees are negotiable. CA allows charging liens to guarantee collection from an award to be written into contingency agreements, but not hourly fee contracts. Allows criminal contingent fees and divorce contingency agreements, provided that fee arrangement does not encourage the divorce of an otherwise stable marriage. Fees must not be unconscionably high. Attorneys must agree to ADR to settle fee disputes if the client wishes. CA does not. Permitted if total fee is not unconscionable and not increased due to the split.
Contingency Fee Agreements
Excessive Fees
Fees must be reasonable taking into account, labor, novelty, difficulty, skill and time req’d, etc. ABA requires fee split to be proportional, Not permitted.
Fee Splitting Referral Fees
Client Trust Account
Imputed DQ Client for L but L paid by insurance
Additional CA requirement: L must keep records regarding C’s property for five years after final distribution. DUTY OF LOYALTY/CONFLICT OF INTEREST Failure can lead to sanctions. L won’t be sanctioned, just told to get off case. CA-Joint Clients
Publication rights Ks Loans
Close relationship with opposing counsel Trial counsel as necessary witness
Sexual relationships
L cannot accept an offer to buy the publication rights to a C’s story until after the representation ended. L cannot give financial assistance to C in the context of contemplated/pending litigation, except for cost and litigation expenses and repayment contingent on recovery. L cannot oppose a party represented by a close relative w/o C’s informed W/C. Close relations include immediate family and other intimates. (more restrictive) L is prohibited from serving as counsel and witness in the same trial unless L’s appearance as a witness will not prejudice C, testimony is uncontested or regarding the nature/value of services rendered, OR L’s withdrawal would impose substantial hardship on C. Okay if preexisting,
Allows them before proceedings and w/ judge consent. Prohibits promising a prospective C’s debts to gain his business, but after representation ensues, allows all manner of loans for any purpose so long as the C provides a written IOU. Extends this rule to any intimate relationship.
Prohibits Ls from testifying in jury trials unless C W/C.
CA cannot demand sex as a condition of representation, cannot represent them incompetently.
Opposing a present client in an unrelated matter
CONFLICTS B/T CLIENTS Might be allowed, but consent in such Absolute prohibition on taking a case case is rarely reasonable. that is adverse to a present C, even if completely unrelated. Exception: joint clients involving a policy holder and its insurer) Only permissible if C W/C is obtained after full disclosure of the conflict.
Opposing a former C when on opposite sides Former govt L now in private practice
SOX rules for securities L’s
Inaction on knowledge of ethical violation
When a former C has imparted confidential info, the L must not then oppose the former C in any matter in which the confidential info would be relevant. An L cannot work on a matter if the L worked personally and substantially on the same matter (i.e., a specific dispute b/t specific people over specific issues) while in govt. L who discovers evidence of material securities violations must report matter to 1) the CEO or chief of legal counsel 2) the board or highest authority, then 3) MAY disclose the matter w/o C consent to the SEC if she reasonably believes it is necessary to prevent fraud or substantial injury to the entity or its investors, or if her services were used. Not actionable
Explicitly bars prosecutors from later working on defense of the same case. CA has no other general rule.
Permits but does not require reporting up the internal hierarchy and may prohibit outside reporting. Federal preemption means a CA lawyer cannot be disciplined for complying with the federal law.
CA you can be disciplined for merely knowing about a firm member’s ethical violation and doing nothing to prevent it.
Exception to confidentiality
Exception to confidentiality
Perjury remedy
DUTIES TO PRESERVE CONFIDENTIAL CLIENT INFORMATION L may disclose if C is used you or is No exception for financial crimes using your services to commit a crime, AND the disclosure would prevent or mitigate substantial financial loss. Seeks to commit future crime involving May-Make good faith effort to persuade death or bodily injury the C not to commit the act and 2) inform the client of your decision to reveal his confidence. DUTIES TO THE COURT AND FAIRNESS TO YOUR ADVERSARY If withdrawal won’t remedy the situation, Requires L to persuade the C not to L must disclose matter to court (tell the testify falsely, and if that fails, L may judge). seek court’s permission to withdraw. If the court refuses to permit withdrawal, the L must proceed w/ the case. L may allow perjurious D to testify in a narrative fashion, but must not to further the deception. PRESERVING THE DIGNITY OF THE COURT AND ADDITIONAL DUTIES Must register with the CA Bar, pay Allows an out-of-state attorney in good dues, satisfy continuing legal education standing to temporarily practice in requirements, and be subject to CA another JX if they associate with an inethics rule. state attorney who actively participates in the case. An L must report misconduct to the Requires self-reporting if the L is being appropriate professional authority if it charged with a felony or certain crimes, raises a question as to the L’s honesty, found civilly liable for fraud or breach of trustworthiness, or fitness as a lawyer fiduciary duty, disciplined in another JX or judge. or under certain conditions, sued for malpractice or sanctioned. DUTY TO WITHDRAW L a lawyer must 1) give timely notice to Forbids withholding client materials to the C 2) promptly return any unspent collect fees. advances and 3) return all material papers and property of the client and cannot refuse to return the C’s file to compel the C to pay outstanding fees. A lawyer may withdraw with consent of the court or if continuing would impose a financial burden If C has used L’s services to commit past crime or fraud CA narrows this to C’s breach of K to pay expenses/fees this is not a valid ground in CA
Out-of-state Attorneys
Reporting Misconduct
Duties on withdrawal from representation
Permissive withdrawal