How to Ace FYLSE/Professional Responsibility Essay Template
- 1 I. The Attorney Duty to the Client
- 1.1 A. Concurrent Conflicts of Interests
- 1.2 B. Duty of Competence
- 1.3 C. Fee Agreement
- 1.4 D. Duty of Fairness
- 1.5 E. Advancing Litigation Fees and Living Expenses
- 1.6 F. Contingent Fee Agreement-Disclosure Requirements
- 1.7 G. Consensual Sexual Relationship
- 1.8 H. Unreasonable Fee
- 1.9 I. Duty to Not Assist in the Unauthorized Practice of Law
- 1.10 J. Withholding of Legal Services
- 1.11 K. Sharing Fees w/ Nonlawyer
- 1.12 L. Limiting Liability for Malpractice
- 1.13 M. Property for Services
- 1.14 N. Business Transactions
I. The Attorney Duty to the Client
A. Concurrent Conflicts of Interests
1. ABA Model Rules: Under the ABA Model Rules，a lawyer may undertake representation εven if there is a conflict if:
- a. The lawyer reasonably believes that she can competently and diligently represent each affected client despite the conflict， and
- b. Each affected client gives informed， written consent.
2. CA Rule: Is different in three respects:
- a. It does not contain a “reasonable lawyer" standard;
- b. It applies to potential as well as actual concurrent client conflicts; and
- c. And it only requires written disclosure where the conflict arises out of the lawyer's prior or personal interests.
B. Duty of Competence
1. ABA: In representing a client， the ABA Model Rules provide that a lawyer must act competently， i.e. with the legal knowledge， skill， thoroughness， and preparation reasonably necessary for the representation. A lawyer may be competent in a certain field through adequate preparation.
2. CA: In California， a lawyer is subject to discipline if she “intentionally， recklessly， or repeatedly fails to perform legal services with competence.
C. Fee Agreement
1. CA California requires a written fee agreement if the fee will exceed $1，000， except in the following circumstances:
- a. The client is a corporation，
- b. The client states in writing that she does not want a written fee agreement，
- c. The legal services are of the same kind of services that the client has previously received and paid for，
- d. The lawyer acted in an emergency to protect the client's rights，
- e. A writing is impractical for other reasons.
2. ABA: The ABA does not require a noncontingent fee agreement to be in writing， although it is recommended.
D. Duty of Fairness
Although not specifically addressed in the ABA Rules forbids a lawyer from threatening to bring disciplinary， administrative， or criminal proceedings to gain an advantage in a civil dispute.
E. Advancing Litigation Fees and Living Expenses
1. ABA: The ABA Rules prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation， except that:
c. Lawyer may advance court costs and εxpεnses in litigation， thε repayment of which can be contingent on the outcome of the matter;
d. The lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
2. CA: The California Rule is similar， but is different in three other respects:
- a. The California rule applies in all contεxts， not just litigation;
- b. The California rule prohibits a lawyer from “buying" a potential client with a promise to pay the potential client’s personal business or debts;
- c. After the lawyer is hired， he may lend the client money for any purpose if the client gives him a written promise to repay the loan.
F. Contingent Fee Agreement-Disclosure Requirements
Any contingent fee agreement must include litigation and other expenses to be deducted from the recovery， and whether such expenses are to be deducted before or after the contingent fee is calculated. Under casε law contingent fees for domestic relations cases are prohibited if they promote dissolution.
G. Consensual Sexual Relationship
1. ABA: Und한 the ABA Rules， a lawyer must not have a sexual relationship with a client. The sole exception to the rule is when the lawyer and client had a consensual sexual relationship before the lawyer-client relationship bεgan.
2. CA: California does not prohibit sexual relationships between lawyer and client unless the lawyer:
- a. Demands sexual relations with the client as a condition of professional
- b. Enters in sexual relations with the client by coercion or undue influence， or
- c. Represents the client incompetently because of the sexual relationship.
H. Unreasonable Fee
1. ABA: The ABA Rules state that an attorney’s fee must be reasonable. Among the many factors to be considered in determining the reasonableness of a fee include:
- a. The time and labor required;
- b. The novelty and difficulty of the questions involved;
- c. The skill required to perform the legal service; and the experience， ability， and reputation of the attorney.
2. CA: The California Rule prohibits unconscionable fees.
A lawyer must not assist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law. The practice of law is defined as anything that would pass for the judgment, reasoning, or skill of a lawyer (member of the bar).
J. Withholding of Legal Services
A lawyer has a duty to act on behalf of a client with reasonable diligence and promptness and must see the matter through to completion. The lawyer may withdraw from the case if the client fails to substantially to fulfill an obligation to the lawyer regarding services.
K. Sharing Fees w/ Nonlawyer
A lawyer may not share a fee with a non-lawyer.
L. Limiting Liability for Malpractice
A lawyer must not settle a claim for a potential claim for malpractice liability with unrepresented client or former client without advising that person in writing that independent counsel is desirable and giving that person a reasonable chance to consult with independent counsel.
M. Property for Services
A lawyer may accept property in return for services, provided that this does not involve a proprietary interest in the cause of action or service of litigation.
N. Business Transactions
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client unless the transaction and terms under which the lawyer acquires interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which is reasonably understood by the client.