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CAL 1 May multiple "principal" law firms designate the same independent attorney or law firm as "of counsel" in their solicitations, including stationery and similar public announcements. CAL While Attorney serves as a director of a corporation "Corporation" , Client approaches Attorney with a proposal for a transaction with Corporation.
Client wants to present the proposal to Corporation and asks the attorney to represent it in connection with structuring the proposal and negotiating and drafting an agreement between Client and Corporation. Corporation is regularly represented by other counsel in connection with such transactions.
What ethical considerations must Attorney address as she decides whether she can or should accept representation of Client? CAL What are a lawyer's ethical responsibilities when rendering non-legal services to a client that are either 1 performed by the lawyer outside the scope of the lawyer's legal representation of the client, or 2 performed in connection with a lawyer or law firm's representation of the client or otherwise by someone employed by the lawyer or an entity owned in whole or in part by the lawyer?
CAL What ethical issues arise when attorneys enter into arrangements to share office space or services, such as reception and library facilities, maintenance staff, secretarial staff, or paralegal staff, without forming a law firm? CAL When a member of the California State Bar undertakes representation of a new client in a matter which is adverse to a former client of the member's law firm, must the member obtain the former client's informed written consent before accepting the new representation?
CAL 1 To what extent do the California Rules of Professional Conduct apply to a member who is performing, or represents and markets herself as able to perform, both legal and non-legal professional services for a client at the same time? CAL What aspects of professional responsibility and conduct must an attorney consider when providing an Internet web site containing information for the public about her availability for professional employment?
CAL What ethical duties does an attorney have regarding the retention of former clients' files? Is the attorney ethically required to retain the files for any specific length of time following the completion of representation? CAL Under what circumstances may a communication in a non-office setting by a person seeking legal services or advice from an attorney be entitled to protection as confidential client information when the attorney accepts no engagement, expresses no agreement as to confidentiality, and assumes no responsibility over any matter?
CAL 1 May an attorney ethically accept payment of earned fees from a client by credit card? CAL Is it ethically proper for an attorney who is settling a fee dispute with a client to include a general release and a Civil Code section waiver in the settlement agreement? Does the existence of a legal malpractice claim against the attorney alter the ethical propriety of including a general release and section waiver in the settlement agreement?
CAL May an attorney disclose client confidences to her own attorney to evaluate a wrongful discharge action against her former firm and, in pursuing her claim, may she or her attorney publicly disclose those client confidences? How does the fulfillment of those duties differ if the attorney had no connection with or knowledge of the client prior to dissolution of the firm?
A local law firm continuing the name of a deceased partner in the firm name may add to the firm name the name of a member of the firm who was a partner of the deceased. LA Partnership Name. Neither of two sole surviving law partners has the right to use a former firm name which included the name of a deceased partner over the objection of the other surviving partner.
The duty of an associate of an attorney under a disability, is to advise the attorney's clients in writing of such disability and of their right to select other counsel; in the event a client's matter requires immediate attention the associate should take such action as may be required to preserve the client's rights.
Every attorney, including an associate in a legal partnership, must exercise his professional judgment in the best interest of his clients and must take steps which are necessary to assure competent representation for his client or withdraw from the case. In the absence of written instruction by the client, the client's file relating to a criminal matter in the possession of an attorney should be retained by the attorney and not destroyed.
LA Letterheads, Of Counsel. The name of a firm appearing on its letterhead should not include the name of an attorney who has never been a partner and is merely "of counsel" to the firm. LA Restrictive Retirement Payments. A partnership agreement does not violate the provisions of Rule , California Rules of Professional Conduct derived from former Rule , prohibiting agreements restricting the right of a member to practice law, if it requires the member to forego or defer a bona fide retirement payment solely on the basis of his or her continued practice of law.
An attorney may be subject to discipline for undue influence for drafting or amending a will in which the attorney receives a substantial gift if the client has not received independent advice regarding the drafting or amending of the will. If the client refuses to seek independent advice, the attorney may not draft or amend the will.
In addition, the possibility of challenges of undue influence raises serious concerns about the competence of the representation. The payment of a "year end bonus" to an "of counsel" attorney who is not a partner, associate, or shareholder of the law firm and whose relationship to the law firm consists primarily of the reciprocal referral of business, is prohibited without client consent under Rule When a law firm maintains in storage client files relating to matters that have been closed for several years, and then the law firm dissolves, the members of the firm who have responsibility for winding up the affairs of the firm have an ethical obligation to use all reasonable means to contact the former clients to notify them that their files may be retrieved.
If, after diligent efforts to notify a former client of the availability of the closed file and of the plan to destroy the file if no contrary instruction is received, and after a sufficient period of time has passed since the notice was sent and since the matter was closed, the former client makes no response, then the dissolved firm's former partners may destroy the file, with the exception of any intrinsically valuable materials.
They must not reveal any client confidences or secrets in the process of destroying the files. The Committee strongly recommends that lawyers arrive at some agreement with their current clients regarding the handling and disposition of files once matters are closed in order to avoid the ethical and practical problems which may be caused by not having instructions from former clients as to the disposition of closed files.
Ideally, this subject should be addressed expressly in writing at the outset of an engagement. An attorney may limit the attorney's services by agreement with a pro per litigant to consultation on procedures and preparation of pleadings to be filed by the client in pro per. We will tell you if you have a case worth pursuing. Click the link above to check the background of your financial adviser, brokerage firm or any other investment professional. The Furgison Law Group represents retail and institutional investors around the world in securities arbitration and litigation.
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The first patent was successful, and in succeeding years until , although no further fee agreements were executed, 18 additional patents, for other inventions, were applied for and assigned to the same corporate entity. Subsequent Developments:. In the early s, Rhodes withdrew from his partnership with Bain and Gilfillan, resulting in acrimonious correspondence among the lawyers as to the future financial arrangements between the parties.
Various changes also occurred in the way in which the patent business was structured, and in the relationships between the clients and the lawyers. Buechel and Pappas also did considerable research and other work on the inventions. In a dispute arose as to the respective compensation each should receive for their various efforts, apart from their beneficial interests.
Rhodes commenced suit against Buechel and Pappas for his alleged share of the proceeds in , and they promptly terminated him as their attorney and as attorney for the business. Buechel and Pappas counterclaimed, seeking fee forfeiture and damages for various alleged acts of malpractice, unethical activity, and negligence in connection with two patent applications. The key issues considered by the court were:.
The Decision:. Thus, the Model Rule provision is somewhat more strict than the New York Code provision, among other things requiring that both the transmittal of the disclosure and the consent be in writing, the transaction be "fair and reasonable," and the client be given the opportunity to consult independent counsel.
Section of the Restatement Third of the Law Governing Lawyers to be published shortly by the American Law Institute essentially follows the Model Rule, with some minor linguistic changes such as that writing is only mandated where required by law. Accordingly, it is unlikely that a court in any other jurisdiction looking at the facts of Rhodes v. Buechel would have reached a different conclusion based on an ethics code using the Model Rule, rather than the New York Code formulation. More specifically, it is likely that independent counsel would advise against a percentage ownership of the property, as opposed to payment of services rendered based on a quantum meruit basis.
Such would alleviate the imbalance of equities found herein. This he fails to disclose. This list was not intended to be exhaustive of all conflicting interests contemplated, but clearly illustrates that each instance in which Rhodes failed to make full and complete disclosure to his clients constituted a separate violation of the ethics rules. The following passage from the decision is illustrative of these findings:. Greens v. Greene, 56 N. Upon forming the corporation, accepting one-third of the profits of the inventions in return for legal services, and failing to fully disclose the potential conflicts, it is clear that Rhodes violated DR a , a and his fiduciary obligations.
Historically, courts have treated this area of law, attorney-client fee arrangements, with special concern, applying principles different from those set forth by commonplace commercial contracts so as to uphold the integrity of our legal and judicial systems. See, Matter of Schanzer, 7 A.
Camp, N. Shaw v. This Court recognizes the special nature of the attorney-client relationship. Further, the Court believes that such relationships and public perception may be undermined by the unethical conduct of a lawyer. Matter of Winston v. Pessoni v. Rabkin, AD2d 2nd Dept. Friends World Coll. The court also considered a total forfeiture of any fees prior to termination.
The basis for this decision was, first, that he had worked diligently and achieved great success for his clients and, second, that to do otherwise would create an inequitable and unjust enrichment of Buechel and Pappas.
This case has profound and important lessons for all lawyers who contemplate engaging in relationships that involve conflicts of interest, both generally as well as of the particular kind considered here. The Legal Implications The court in Rhodes v. Mershon, the Supreme Court of Iowa held that entering into a business transaction with a client without full disclosure and without recommending that the client consult with independent counsel warranted a reprimand, even though the attorney did not make a profit on the transaction and was specifically found to be forthright and honest.
The Obligation Is Continuing. Rhodes v. Buechel makes it abundantly clear that every time there is any change of circumstances in which the conflicts may resurface, or appear in new manifestations, the same level of detailed and extensive disclosure must be made, and fresh consents obtained.
Courts generally view all business transactions between an attorney and client with suspicion and disfavor. Opperman, 64 AD2d 4th Dept. With clarity, the [Radin] Court placed the burden of coming forward with clear and satisfactory evidence in these transactions, squarely on the shoulders of the attorney.
Opperman, supra at Only documentation evidencing full disclosure and, in many circumstances, the actual receipt by the client of independent legal advice that the arrangement is fair and reasonable, the disclosure is adequate, and the consent is appropriate, will offer any basis for avoiding problems flowing from the conflict. Consent will not be inferred under any circumstances, and fresh, actual consent is required whenever fresh disclosure is required.
In Goldman v. Kane, even though the client consented after full disclosure, and the lawyer counseled against the transaction, the Massachusetts Court of Appeals found the attorney had breached his fiduciary duty because of the fundamental unfairness of loan terms and egregious overreaching by the lawyer.
Buechel, the court found the obligation to recommend independent counsel at several different points in the history was based on the general equitable rule that an instrument in which a client desires to name his or her lawyer beneficially should be prepared by another lawyer selected by the client.
Buechel simply reinforces the point that this power extends to undoing apparently binding writings of all kinds, even trusts and corporate agreements. The Practical Implications. Some readers may be tempted to suggest that the facts in Rhodes v. Buechel are egregious, and that the case should not be used to preclude without exception prudent investment, including taking fees in the form of investment interests in clients. In the comment to Model Rule 1. After all, a lawyer representing General Motors is presumably entitled to invest in a mutual fund that, in turn, invests in General Motors.
However, determining where the dividing line falls between this example and the situation in Rhodes v. Buechel is precisely why the ethical rules and legal principles discussed here exist. Moreover, the provisions of the ethics codes permitting representation where conflicts exist based on "disclosure" and "consent" can act as a trap for the legal profession.
As the Rhodes v. Buechel case makes abundantly clear:. In sum, it is not extravagant to state the proposition that accepting engagements with unresolved conflicts of interest may be the equivalent of writing an unequivocal warranty of satisfaction to the client. At a minimum, the lawyer jeopardizes his or her right or ability to collect some or all of his or her fees. The Risk Management Implications. The only way for a law firm to ensure that it will never face allegations such as those made in Rhodes v.
Buechel is to avoid investing in clients altogether, and to refuse to take stock in lieu of traditional legal fees. Courts presume that business transactions between attorneys and their clients are fraudulent, and the burden rests with the attorney to demonstrate otherwise. Against this backdrop and after careful consideration of all the attendant risks, many firms have adopted policies prohibiting all types of client investments. Should a firm decide that this most conservative approach is impractical, however, the following risk management recommendations, taken together, should help to mitigate the risk of malpractice claims.
Thus, for the protection of everyone in the firm, the separate and distinct decisions as to 1 whether to take on the engagement at all, 2 whether the client disclosure made or proposed is adequate, and 3 what other protections are required, need to be made independently of the introducing partner, based on full knowledge of the facts.
This policy should require that all relevant decisions be made before the engagement is commenced, and be made not by the introducing partner but by an independent partner or committee, following the delivery to that independent partner or committee of all information necessary for a reasoned judgment as to the risks and benefits to the firm from accepting or rejecting the engagement, or from agreeing to or rejecting an investment in the client.
A clear and consistent review process and criteria will assist in defending against any later challenge of the investment. Full disclosure of all conflicts and potential conflicts of interest must be made to the client in accordance with Model Rule 1.
Disclosure under Rule 1. For example, if it is possible that the law firm may have to withdraw from the representation if a potential conflict is actualized, that possibility must be fully and clearly explained. Firms should clearly avoid the use of "blanket" waivers whenever they invest in clients.
Blanket waivers are usually short consent forms presented as a matter of routine and in standard "boilerplate" language to all new clients, wherein the client purports to consent to all, or to certain, specified classes of potential future conflicts of interest. Almost by definition, a blanket waiver is bound to fail the tests set out in Rhodes v.
In addition, not only must the engagement letter include the advice that the client seek independent counsel to review the fee arrangement, but the client should actually do so; even sophisticated clients should be encouraged to consult with independent counsel. The Supreme Court of Minnesota recently found that a loan transaction between an attorney and client that was consummated in one day violated Rule 1. Investments should be made on behalf of the law firm as a whole, not by individual attorneys.
When an individual invests in a client, the risks are borne by the law firm as a whole, while the potential benefit will accrue only to the individual. It is therefore wise to prohibit investments by individual attorneys, and require that any investments or acceptance of stock be undertaken by the firm itself.
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