ERRANT PLANS
Reasonability of fees
- Experience
- Reputation
- Results
- Ability
- Novelty/difficulty
- Time and labor
- Precluded from other work
- Limits on rep
- Amounts involved
- Normal fees
- Skill required
Duty of confidentiality
Wider range of situations than A/C privilege
Exceptions:
- Client gives consent
- implied authorization - necessary to carry out rep
- mandatory disclosures (death, future crime, bodily harm)
- permissive dislcosure
- client’s best interest
- A/C disputes
- compliance w/ RPC
- Conflicts of interest when lawyer changes firms/etc. (only if would not compromise A/C privilege or prejudice client)
Contingency fees
Recovery before answer/demand
- less than $1mm - 33.3%
- $1-2mm - 30%
- Over $2mm - 20%
Recovery after answer/demand
- less than $1mm - 40%
- $1-2mm - 30%
- over $2mm - 20%
Trial solely on damages
- up to $1mm - 33.3%
- $1-2mm - 20%
- over $2mm - 15%
Contingency fees - Med malpractice
- At least 75% of first $250k of all damages receivd (excl. reasonable & customary costs)
- 90% of all damages above $250k (excl. of same costs)
DRTH (of character)
Requires for character
- Diligence
- Reliability
- Trustworthiness
- Honesty
Mandator withdrawal
- Continuing rep will result in violation of law or RPC
- A’s physical/mental impairment (materially impairs)
- Discharged by C
- C persists in criminal/fraudulent course of action
- A’s services used to conduct crime/fraud
A/C privilege
- Testimonial privilege
- applies to confidential communication for purpose of giving legal advice
- only client can waive
- lasts indefinitely
Exceptions: future crime/fraud, disputes between A and C
Permissive withdrawal
(Withdrawal Caused by Unreasonable Repugnant MAE)
- nonpayment of fees after warned about withdrawal
- Unreasonable financial burden on A, or unreasonably difficult to rep C
- C wants course of action that A finds repugnant, imprudent, or fundamentally disagrees with
- No material adverse effect on C
- other good cause
Fee sharing
ESPN-B
- Estates (work done pre-death)
- Sale of practice (dead/disabled lawyer)
- pensions
- non-profit/pro bono legal services (court awarded fees)
- bonuses (to firm staff)
Special duties of prosecutor
- Can’t knowingly prosecute w/o PC
- can’t seek waiver of important pretrial rights from unrepresented accused
- Brady disclosures (Timely - info re: negation of guilt/mitigation of defense)
- Sentencing - disclose to defense/court unprotected mitigating info (unless under protective order)
Client trust accounts
- client funds
- client property
- 3P property
- 2+ people have interest (settlements)
- fee disputed funds
- advances (fees, costs, expenses)
IOTA - interest on short term funds from clients/3Ps must go to IOTA account –> payable to FL bar foundation
Duties to tribunal
- Correct false statements of material fact
- must correct false evidence
- Must refuse to offer false evidence
- may refuse to offer evidence reasonably believed to be false
- disclose controlling legal authority adverse to C’s position
- C can’t testify falsely
- reasonably try to correct false testimony
- provide material facts in ex parte proceedings
Requirements for admission
CAKE
- Character - good moral character
- Age - over 18
- Knowledge - pass bar exam
- Education (JD from accredited law school)
Non-lawyers
Non-lawyer can’t:
- own any interest (exception: wrapping up estate of deceased lawyer);
- be corporate director, officer, etc.
- direct/control lawyer’s professional judgment; or
- share fees
Communication w/ clients
Obligated to:
- keep client reasonably informed
- promply reply to requests for info
- convey all settlement matters promptly
When can a subordinate lawyer do what the supervising attorney order him to (and be okay later)?
When it’s reasoable resolution of an arguable question
Communication of fees
New clients: must community basis/rate, preferably in writing
Old clients: need not explain fees if in writing if there’s already basic understanding
Contingency fees
- in writing
- signed by C and A
- % that A takes for settlement, trial or appeal
- whether expenses deducted
Personal injury only - signed statement of C’s rights, and C gets a copy
Conflicts of interest
Unless consentable, L can’t represent client if
- representation is adverse to C
- material limits representation of client (includes another client, former client, 3P or personal interest)
Consentable conflict
L reasonably belivees he can provide
- competent and diligent representation
- rep isn’t prohibtied by law
- won’t have to assert position adverse to one client when there are 2+ in same proceeding
Consent needs to be in writing or on the record
Conflict against former clients
Representation materially adverse to prior client in same or substantially related matter prohibited w/o consnet
Informed consent cures, but still can’t use confidential info against prior client
Business transactions w/ clients
L needs
- written consent
- to advise in writing that C seek independent counsel
- transaction fair & reasonable
Also, can only take gifts from Cs who are related
Leaving old firms/ joining new firms
Can’t represent Cs if:
interests are materially adverse
same or substantially related matters
applicable lawyer has CI
Evidence
L can’t
obstruct access to evidence
alter/destroy evidence (or counsel someone else to)
fabricate evidnece (or counsel someone else to)
