1. Professional Responsibility
Class 3 9/1/16

2. Tonight Attorney Client Relationship (Textbook: Chapter 3)
Two employment agreements
1. Criminal case – fixed fee
2. Personal Injury case – contingent fee

3. Next Week – 9/8/16
Textbook: Chapter 4
Advertising and Solicitation

4. Last Week
We discussed the ABA Rule on Pro Bono work

5. Pro Bono Publico
“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 public legal services per year…”
California has no legal ethics rule concerning pro bono legal services.
ABA Model Rule 6.1:

6. In addition….
Under the ABA Model Rules attorneys also have an ethical obligation to accept a fair share of unpopular matters or indigent or unpopular clients.
ABA Rule 6.2 (comment)

7. But there is also a Duty to Reject Certain Cases
ABA Model Rules:
There are some cases that an attorney must refuse to take.

8. 1. When the Lawyer is Not Competent
ABA Model Rule 1.1

9. CRPC 3-110
(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
(B) For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental emotional, and physical ability reasonably necessary for the performance of such service.

10. CRPC 3-110(C)
If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

11. Emergency exception
In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral or consultation with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances.
CRPC (comment)

12. 2. Client Motive
A lawyer is subject to discipline for bringing an action, conducting a defense, asserting a position, or taking steps if the clients motive is to embarrass, delay, or burden another person.
ABA Model Rule 4.4(a); CRPC 3-200

13. 3. Unsupportable Factual or legal position (“… a duty not to abuse legal procedure.”)
ABA Model Rule 3.1

14. 4. Strong Personal Feelings (“personal interest of the lawyer”)
ABA Model Rule 1.16(a)(1); 1.7(a)(2)

15. 5. Impaired Mental or Physical condition
ABA Model Rule 16(a)(2)

16. Attorney Fees – ABA Rule
When a lawyer has not regularly represented a client, the basis or rate of the fee and the expenses for which the client will be responsible must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
ABA Model Rule 1.5(b

17. Attorney Fees -California
Fee agreements between the lawyer and a client must be in writing if fees and costs will exceed one thousand ($1,000) dollars. A duplicate of the agreement must be signed by both the attorney and the client and must be given to the client at the time the agreement is entered into. Failure to abide by this rule will make the agreement voidable at the option of the client.

18. Unconscionable or Illegal Fees
CRPC 4-200(A):
“ A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.”

19. CRPC 4-200(B)
Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events.
Eleven (11) factors are listed in determining the conscionability of a fee.

20. ABA Rule 1.5(a)
“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee, or an unreasonable amount for expenses.”
Ten (10) factors are listed in determining the reasonableness of a fee.

21. Contingent Fees
A contingent fee must be reasonable in amount. An attorney must not use a contingent fee when the facts of the case make it unreasonable too do so.
ABA Model Rule 1.5 (comment)

22. Contingent Fees Criminal Cases
A lawyer is subject to discipline for using a contingent fee arrangement when defending a person in a criminal case.
ABA Model Rule 1.5(d)(2)

23. Contingent Fee Dissolution Cases
“A lawyer shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or the amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof…”
ABA Model Rule 1.5(d)(1)

24. California Requirements
B & P Code section 6147:
(a) An attorney who contracts to represent a client on a contingency fee basis shall, at the time the contract is entered into, provide a duplicate copy signed by both the attorney and the client…The contract shall be in writing and shall include, but not limited to, all of the following;

25. 1) A STATEMENT OF THE CONTINGENCY FEE RATE THAT THE CLIENT AND ATTORNEY HAVE AGREED UPON.

26. 2) A STATEMENT AS TO HOW DISBURSEMENTS AND COSTS INCURRED IN CONNECTION WITH THE PROSECUTION OR SETTLERMENT OF THE CLAIM WILL AFFECT THE CONTINGENCY FEE AND THE CLIENT;S RECOVERY

27. 3) A STATEMENT AS TO WHAT EXTENT, IF ANY, THE CLIENT COULD BE REQUIRED TO PAY ANY COMPENSATION TO THE ATTORNEY FOR RELATED MATTERS THAT ARISE OUT OF THEIR RELATIONSHIP NOT COVERED BY THEIR CONTINGENCY FEE CONTRACT. THIS MAY INCLUDE AMOUNTS COLLECTED FOR THE PLAINTIFF BY THE ATTORNEY.

28. 4) UNLESS THE CLAIM IS SUBJECT TO THE PROVISIONS OF SECTION 6146, A STATEMENT THAT THE FEE IS NOT SET BY LAW BUT IS NEGOTIABLE BETWEEN ATTORNEY AND CLIENT.

29. 5) IF THE CLAIM IS SUBJECT TO THE PROVISIONS OF 6146, A STATEMENT THAT THE RATES SET FORTH IN THAT SECTION ARE THE MAXIMUM LIMITS FOR THE CONTIGENCY FEE AGREEMENT, AND THAT THE ATTORNEY AND CLIENT MAY NEGOTIATE A LOWER RATE.

30. B & P 6147 (b)
“Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee.”

31. Malpractice Insurance
An attorney who does not have professional liability (malpractice) insurance must infirm the client in writing of that fact when it is reasonably foreseeable that his or her representation of the client in the matter will exceed four(4) hours.
CRPC 3-410(A)
This notice may be included in the retainer agreement.

32. Fee Arbitration B & P section 6200:
(c) Unless the client has agreed in writing to arbitration under this article of all disputes concerning fees, costs, or both, arbitration under this article shall be voluntary for the client and shall be mandatory for an attorney if commenced by a client. Mediation under this article shall be voluntary for an attorney and a client.

33. Bothwell v. Republic Tobacco Co.

34. Ruskin v. Rogers

35. Rosenberg v. Levin

36. Holmes v. Y.J.A. Realty

37. Kriegsman v. Kriegsman