1. Conflict of Interest - Examples
Overreaching or Fraud
Example: Making a profit at expense of client
Witness
Example: Representing a client when you may be a witness
Financial interest in the case
Example: Being financially involved in the litigation of the client
Gifts
Example: Accepting more than nominal value
Intimate Relationship
Dating current and probably former client

2. Conflict of Interest - Examples
Representing seller and purchaser
Representing insured and insurer
Representing husband and wife
Representing debtor and creditor
Joint representation of criminal defendants (in most cases)

3. Conflict of Interest Remember: Ethical wall and waiver
A lawyer who has formerly represented a client in a matter
shall not thereafter:
represent another person in the same or a substantially related matter in
which that person’s interests are materially adverse to the interests of the
former client unless the former client consents after consultation . . .

4. Unit 6 Review: Advertising
It wasn’t until the landmark Supreme Court case of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that lawyer advertising was declared to be protected commercial speech under the First Amendment.
In the years since the Bates v. State Bar of Arizona case was decided, there has been a significant increase in lawyer advertising. Each state has its own ethical rules regulating attorney advertising and the solicitation of prospective clients.

5. What can a lawyer advertise?
Name
Address
Phone Number
Areas of Practice
Contingency fee basis (some states you can state “no fee unless you win,” but you must disclose if there are expenses)

6. What can a lawyer not advertise?
Some states:
Examples that create unjust expectations
Prior “win” record
Amounts of previous damage awards
Subjective claims as to the quality of the lawyer’s services or credentials
“expert,” “highly qualified, “experienced”
Testimonials by current clients or paid endorsements
Nicknames, mottos, trade names that suggest an ability to obtain results
Fictionalized portrayals of clients, judges, or lawyers

7. Solicitation Solicitation is in person, by telephone, or by written
Almost all forms of solicitation are not permitted
Solicitation is in person, by telephone, or by written
communication that is directed to a specific individual
Ambulance chasing
Offering your unsolicited legal services
Advertising, on the other hand, is directed to the public
at large
Direct Mail is somewhere in between Solicitation and
Advertising and is allowable in some states, while in
others it is prohibited

8. Unit 7 Review: Fees & Trust Accounts
Fair Fees and Client Trust Accounts
One of the most common ethical violations in the legal profession: mishandling of clients' money.
Paralegals play a large role in financial matters, from billing clients to maintaining client trust funds.
It is therefore essential for students who plan to be legal assistants to have a complete understanding of attorney fees, ethical billing practices, and the duties required in handling client funds.

9. Fee Agreement Fee Agreements should include:
1. identify the client(s);
2. identify the lawyer primarily responsible for handling the file;
3. describe the nature and the scope of the representation;
4. set out the objectives of the representation;
5. tell the client what you expect from the client, such as timely responses
to your requests and absolute truthfulness;
6. set out the basis for calculating the fee;
7. make clear the responsibility for paying costs and give some examples of
standard costs;
8. describe the method, manner, and frequency of billing, including how
any retainer money held in trust will be used;
9. make a disclaimer about results;
10. set forth the process for dealing with unpaid bills (are you going to arbitrate
disputes?);
11. Tell the client what happens if the firm needs to terminate the representation;
12. make a disclosure about professional liability insurance; and
13. make a clear statement about what will happen to the files at the conclusion
of the case (remember, you don’t want to store those files!) and if the
representation is terminated.

10. Fee Agreements - Types Fee agreements are normally negotiable
Types of fee agreements
Contingency Fees
Mostly for personal injury cases
Attorney’s fee is a portion of settlement/award
Fee structure needs to be fully explained to client in advance
Cannot be “objectively unfair;” court will review:
the sophistication of the client
how well the contract was explained, and
how acceptable the fee agreement would seem to the average person.
Provide a full accounting at conclusion of case
Watch for overreaching!

11. Fee Agreements - Types Hourly Billing
Each client is assigned an hourly billing rate
Normally lawyers, law clerks, and paralegals have different billable rates
Should keep billing records contemporaneously
Normally bill in 30-day increments
For example:
Daily Time Sheet
Date: Employee: Dan Molnar
30 minutes for S. Smith – Discussed DWI case
120 minutes for K. Davis – Researched client’s employment record

12. Fee Agreements - Types
Value Billing – Charging a flat rate for certain tasks
$200 for drafting a complaint
$400 for a court appearance
Bonus Billing – Reduced hourly rate and a bonus for good results
Fixed Fee Billing – One flat rate for representation no matter how long matter takes
For example, bankruptcy or divorce
Blended Rate Billing – Flat rate for all billable employees

13. Retainers Retainers are fees that are paid in advance
Types of retainers
“Classic” Retainer – A fee paid to “reserve” the
services of an attorney. Sometimes called a nonrefundable retainer.
Advance Payment Retainer – Is a present payment for a future service and is considered earned upon receipt
Security Retainer – Is to secure payment for future services; remains property of client until applied to charges for services and any unused amounts are refunded to client.

14. Client Trust Accounts
All client monies need to be held in a separate bank account called a client trust account
Settlement proceeds or damage payments or advances
Must be interest-bearing
In many states interest does not go to clients but to the State Bar to fund free legal services
Attorneys should have separate operating account from which payroll, expenses, etc. are paid
Never commingle funds!
When in doubt, as your State Bar!

15. What are defenses to negligence?
“Typical” torts defenses
Comparative Fault
Contributory Negligence
Assumption of Risk
Acting in Good Faith
When a legal professional acts in good faith with an honest belief that his or her acts and advice are in the client’s best interest and they are based on accurate information and adequate research, the legal professional will not be liable for mere errors in judgment.

16. Wrap-up
Questions? Comments?
Good luck on your final exam!