Professional Responsibility

Week 6

• Midterm: 33% of final grade (33 questions). 67 on the final, perhaps. T/F, multiple-guess, fill-in-the-blank (w/rule number or phrase). No whole sentences required. Won't ask questions that depend on the differences between the ABA and WI. We'll have an hour. Maybe only 25 questions. It's not meant to be a time-sensitive thing. Know the rules; maybe the most prominent cases. Handouts: the OLR annual report (cases filed, closed, and in what categories). Exam will be in paper format. It won't be anonymous.
• Review: note that with respect to ineffective counsel, it's not enough merely to show that counsel did poorly, you need also to show that it made a difference. Note also that unless you are GAL, you must follow the client's objectives, in spite of diminished capacity.
• Handout 1: ethics opinion involving 1.16: holding on to documents after you're fired in order to extract fee. WI does not like this.
• More on 1.16: there are requirements and permissions for withdrawal. Sometimes it's mandatory, sometimes it's an option.
• Getting fired doesn't get you out of obligations to the client.
• 1.5 does address conflicts: lawyer's financial interests vs. client's.
  • Reasonableness: time and labor, novelty, skill, preclusion of other work, customary fees, amount of money involved, results obtained, time limitations, experience, reputation, ability, fixed vs. contingent.
  • Communication to client: you must do this... a long-established client is a less particular concerned. WI requires in writing, unless it's less than $1,000.
  • Division of fees between lawyers not in the same firm: reasonable fees, division based on services, client must be advised of the division
• Exceptions to contingency fees: criminal cases (defeats plea settlements) and family cases (don't want to incent the breakup of families).
• Fee agreement issues are generally contract issues: breach, non-payment, non-performance. 70% of contracts are based on hourly rates. Then there are flat fees and contingent fees. Typically, there's no cap, and no estimate. It's unusual for clients to fire lawyers while work is in progress: there are psychological and financial barriers to this. That is a kind of conflict with the client, or can at least precipitate a lack-of-communication complaint.
• There's very little basis for making distinction between lawyers on the basis of quality. Steve Hurley (was a consultant on Primal Fear?) is usually at or near the top in Madison.
• Brobeck: the court finds a fee to be not excessive-- it was a complex contract case-- because of the reputation and hiring process. So a $1M fee for a recovery of $0 may not be excessive.
• Fordham: the court finds a hard-earned fee to be excessive, mostly on the basis of expert testimony about how long these things take (for experienced practicioners).
• Note 1.15(b)(1): you don't have to negotiate fee changes with your client; you just communicate them.
• Problem 7-1: is it reasonable to charge $60K to work on a $70K problem?
• Footnote on p. 421: billing practices are a major part of the image problem that the profession has. It's easy to improve this, at least in part.
• The stuff on p. 424 re: billing practices. There is overbilling, by a majority of lawyers. Doing unnecessary work is an inherent flaw in the hourly-basis billing plan. How do you report when you see someone billing for recycled work? Can you fulfil billable hours expectations, be ethical, and have a life?
• 1.8: avoiding financial conflicts with your own client.
• Re: financial assistence to clients in need: you don't want them to become so beholden to you that they let you take charge of the objectives of representation.
• 1.8 is a big important rule, seems to me. No getting clients to waive malpractice complaint rights, or getting them to settle, without representation. Basically, no getting out of your obligations.
• Two meanings of "retainer:"
  • Pay a sum of money to reserve some of the lawyer's time; this is earned as soon as it's paid.
  • A down-payment against which fees are billed; this goes in trust account, and gets pulled out as it's earned
• Non-refundable fees: seems like a really bad idea. Money up front for work done, but if you don't do the work, you still get the money. Avoid this. It may be per se unethical.
• 5.6: Basically an anti-non-compete for lawyers. There is no non-compete agreement for lawyers. Also, you can't maybe enter into a settlement that precludes future representation. OR IS THERE?
• Handout 2: MPRE sample questions.
• Note 5.7: LLP organizations.