ABA Rule 1.9 (c) applies even if it was the lawyer’s former firm, rather than the individual lawyer, that represented the former client. However, California Rule 3-310 (E) does not apply when a lawyer undertakes representation of a new client in a matter which is adverse to a former client of the lawyer’s law firm.
Clients put a great deal of faith in their lawyers. As with doctors, clients come to attorneys for serious problems-problems that they cannot solve on their own, thus putting them in a potentially vulnerable position. What rights do you have when engaging the services of attorneys?
For an attorney-client relationship to be effective, the client must be able to share all relevant information with his/her lawyer without worrying that it may be used against him/her in court. A man is arrested for California DUI.
California Rule 3-110 (B). Whether it is considered an element of competence or a separate duty, a lawyer must act with commitment and dedication to the interest of the client and with zeal in advocacy on the client’s behalf. ABA Model Rule 1.3, Comment (1); and see proposed California Rule 1.1, Comment (2). [14]
In a much-anticipated ruling, the California Supreme Court held on December 29, 2016 that legal invoices are protected by the attorney-client privilege, and therefore, with some exceptions, need not be disclosed under the Public Records Act.
Cal. 2014) ("[T]he attorney-client privilege generally does not preclude disclosure of fee agreements."). However, under California state law, a "written fee contract shall be deemed to be a confidential communication' that is not subject to discovery." Moriarty v.
Bills sent from lawyer to client are privileged only to the extent that they reflect the specific nature of legal services rendered. Otherwise, a bill for legal services is not privileged.
The only way that a lawyer can turn on their client is if confidential communications involve communications about a current or future crime or fraud. This is the crime fraud exception to attorney-client privilege.
The terms of a fee agreement may be protected. In California, they are protected by statute. Business & Professions Code § § 6149 and 6068.
Most courts hold that a lawyer's fee agreements and bills will not be protected by the attorney-client privilege, except to the extent that they reveal confidential information (such as a description of the work performed).
Attorney-Client Billing Statements Are Protected By Attorney-Client Privilege Regardless of Whether They Contain Legal Opinions or Advice.
Dates and file numbers are not privileged because they do not disclose any legal strategy or the specific content of any confidential communication and, to the extent these entries document work performed by an attorney, they do not disclose that attorney's mental impressions or conclusions, opinions, memoranda, notes ...
Purely Factual Records Are Not Privileged On the other hand, purely factual records or “a report of acts” are not privileged merely because they were created in the course of a solicitor-client relationship.
Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...
No matter what name the agency in your state goes by, they will have a process you can use to file a complaint against your attorney for lying or being incompetent. Examples of these types of behavior include: Misusing your money. Failing to show up at a court hearing.
Dennis BeaverThe attorney does not return phone calls in a reasonable amount of time, and;In a meeting with the client, if the lawyer is being very short, taking phone calls, trying to re-schedule, not giving enough time to the client, does not listen, ignores what is asked or is not answering questions.
1.1. Definition of a “lawyer”. For purposes of the California lawyer-client privilege, the term “lawyer” means. anyone authorized to practice law in California, any other state, or any nation, and. anyone whom the client reasonably believes is authorized to practice law in California, any other state, or any nation. 11.
Therefore, the lawyer-client relationship is one of the most robust privileges in California evidence law. 4. Examples.
Evidence Code 954 makes communications between attorneys and their clients privileged and confidential in California.
Evidence Code 954 is the California statute that makes communications between attorneys and their clients privileged and confidential. This is what is known as the “lawyer-client privilege” (or the “attorney-client privilege”).
The court subpoenas Linda to ask her whether she showed Carlos a copy of his arrest report while he was in jail. The prosecutor believes that information in the arrest report could have provided a motive for Carlos to kill the other inmate.
This is because Mario is not a licensed attorney and never gave John any reason to believe he was. 14
But she is reluctant to tell him the truth about her marijuana sales, for fear that he might disclose such information if she fires him.
A lawyer also may consider the complexity of the case and the amount of time your matter could take.
With the exception of contingency fee arrangements (see below), you can expect to be billed monthly by your attorney.
Before you sign a fee agreement with your lawyer, make sure you understand all of the terms and requirements. The lawyer may have a pre-printed fee agreement. If you don’t approve of any part of the agreement, ask the lawyer to make revisions or to draw up a new agreement better suited to your case.
If you lose your case, the lawyer does not receive any payment from you. However, whether you win or lose your case, you will have to pay some or all of the court costs and other expenses, which can be quite high. Ask the lawyer for an estimate of such costs before you get started.
Fixed fee or standard fee. Commonly used for routine legal matters, such as preparing a simple will. Before agreeing to a fixed fee, find out what it does and does not include, and if any other charges may be added to the bill. Hourly fee, which will can vary among lawyers.
What to do if you can’t pay. If you cannot afford to pay your lawyer’s bill, try to work out a payment plan or another arrangement with the lawyer. If you cannot reach an agreement on how to handle the problem, the lawyer may be entitled to stop working on your case or even withdraw as your attorney.
If you believe your attorney’s bill contains errors or unauthorized charges, contact the attorney immediately and try to resolve the problem.
When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements that interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest that may betray his judgment or endanger his fidelity.”.
Factors to consider include whether the lawyer’s representation is in the same “matter” or is in a matter that is substantially related to the lawyer’s representation of a former client and the nature and degree of the lawyer’s involvement in that matter.
ABA Model Rule 1.9 (a) (“duties to former clients”) addresses both a duty to avoid being disloyal to a former client with respect to the work the lawyer performed for the former client as well as the duty to protect the former client’s confidential information. Model Rule 1.9 (a) provides: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Rule 1.9 (a) precludes, for example, a lawyer from seeking to rescind on behalf of a new client a contract the lawyer drafted on behalf of a former client. The rule would also apply to a lawyer who had prosecuted an accused person and thereafter sought to represent the accused in a subsequent civil action against the government concerning the same matter. A lawyer who had represented multiple clients in a matter could not thereafter represent one of the clients against the others in the same or substantially related matter after a dispute arose among the clients in that matter unless all affected clients gave informed consent. [22]
[28] According to Professor Wolfram, limiting the loyalty obligation to the “attack one’s own work” prohibition, properly relegates the former client conflict analysis to the substantial relationship test and the protection of the former client’s confidential information. The reasons justifying the loyalty obligation to attacking one’s own work are that (i) the former client would be denied the benefit of the very work for which the former client had retained the lawyer , (ii) the lawyer’s attack on her own work would reduce the value of the work for which the lawyer had received fees and (iii) from the new client’s perspective, the lawyer would have an incentive to “pull her punches” in soft pedaling an attack on her prior work for a former client in the same or a substantially related matter. [29]
The concept of client loyalty is a central feature of the attorney-client relationship and a basic tenet in American jurisprudence. [2] But, do lawyers owe a duty of loyalty to former clients? In other words, is there a residual duty of fidelity that continues after termination of the attorney-client relationship that is distinguishable from the duty to protect a former client’s confidential information? If so, how does that duty compare to the loyalty obligation owed to current clients? After all, lawyers commonly take positions against former clients and represent clients in matters that are directly adverse to former clients. A lawyer, for example, may sue a former client and may represent a direct competitor against a former client. [3] A lawyer may also oppose a former client and do things apart from the lawyer’s law practice that are plainly antagonistic to a former client.
California has articulated a common law duty of loyalty to clients that goes beyond the scope of the Rules of Professional Conduct. According to the California Supreme Court “The most fundamental quality of the attorney-client relationship is the absolute and complete fidelity owed by the attorney to his or her client.” [8] “It is an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent. By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests.” [9]
According to the complaint, Goldman was hired because of his reputation and experience in developing projects in Beverly Hills and for his influence with the city council.
The California Rules of Professional Conduct do not specify how long an attorney must retain a former client’s file. Specifically, Rule 3-700 (D) (1) does not set a minimum amount of time that an attorney must keep the former client’s file, nor does it explain when, if ever, particular items in the former client’s file may be discarded or destroyed.
If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. The balance of the file may then be destroyed.
The Los Angeles County Bar Association concluded that a civil attorney should retain potentially significant papers and property in the former client’s file for at least five years analogous to Rule 4-100 (B) (3) of the California Rules of Professional Conduct, which requires an attorney to maintain all records of client funds and other properties that the client provided to the attorney for at least five years .
Physical space may not be as great an issue in the digital age regarding the storage of client files, but the fact remains that the storage of client files is necessary for some time. But how long?
In criminal matters, the attorney cannot foresee the future utility of the information contained in the file. The Committee concludes, therefore, that it is incumbent on the attorney in a criminal matter to obtain some specific written instruction from the client authorizing the destruction of the file. Absent such written instruction, the attorney ...
Although California courts have not yet addressed the retention period, several bar associations within the state, including the State Bar of California, have provided non-binding guidance on this issue. As a threshold matter, these bar associations have recognized a distinction between civil and criminal cases for purposes of the retention period.
If the attorney has no reason to believe that the items proposed to be destroyed include items required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items.
Lawyers are the experts on legal matters, but certain limits apply with respect to their behavior to you, the client.
As a client, you should be aware of the minimum obligations that your attorney must uphold under these Model Rules: 1. Courteous and respectful treatment. You are entitled to be treated with courtesy and respect by your attorney and all personnel in the attorney's office.
Some charge what are called "contingent fees," which means the attorney will get a percentage of any recovery the client receives (and nothing if the client's case is lost, except for expenses such as court filing fees, costs of deposing (interviewing) witnesses, and so on).
What rights do you have when engaging the services of attorneys? Attorneys are licensed by their state’s bar association and are obligated to follow their state’s rules of professional conduct. All states have long codes of professional conduct (for example, see Hawaii’s Rules of Professional Conduct ).
You have the right to file a complaint with the state bar association for alleged attorney misconduct. Don't expect immediate action, however. According to a 2010 ABA study, the average time between a client filing a complaint and the state bar association filing formal charges is between three months ( in North Dakota) and 638 days (in Virginia).
Competence. You are entitled to competent representation by the attorney. Competency requires both intelligence and experience on the part of the attorney. There are ethical rules that prohibit an attorney from taking a case that is frivolous (lacks merit) or is intended to harass another person.
The attorney must keep client money and escrow funds in a separate attorney trust account, and can't use the funds without your property.
While an attorney’s lien may be used to secure either an hourly fee agreement or a contingency fee agreement, hourly fee agreements purporting to create an attorney’s lien must comply with Rule 1.8.1 of the California Rules of Professional Conduct. Rule 1.8.1 requires that:
The common attorney-client relationship in its simplest form is: the potential client signs a fee agreement retaining the attorney, the attorney performs the requested work, the client achieves an end result, and the attorney gets paid. The unfortunate reality, however, is that sometimes a retained client fail to pay its attorney for some (or all) of the legal work that the attorney performed. When this occurs, the attorney is left in a difficult divide between complying with the attorney’s ethical obligations and enforcing the attorney’s right to be paid. So how can the attorney ethically enforce its right to be paid while still complying with the Professional Rules all attorneys are bound by? Is it even possible? The answer is in one small word “liens.”
An attorney’s lien (also termed a “charging lien”) is a lien that secures an attorney’s compensation “upon the fund or judgment” recovered by the attorney for the client.
An attorney must bring a separate action against the client to: (1) establish the existence of the lien, (2) determine the amount of the lien, and (3) enforce it.
An attorney’s lien is created and takes effect at the time the fee agreement is executed , and may be created without even using the word “lien” at all. The determinative question is “whether the parties have contracted that the lawyer is to look to the judgment he may obtain as security for his fee.” Although a notice of lien is not necessary to “perfect” an attorney’s lien, filing a notice of attorney’s lien “has become commonplace, and the courts have endorsed the practice.”
The unfortunate reality, however, is that sometimes a retained client fail to pay its attorney for some (or all) of the legal work that the attorney performed. When this occurs, the attorney is left in a difficult divide between complying with the attorney’s ethical obligations and enforcing the attorney’s right to be paid.
Unlike most jurisdictions, where an attorney’s lien is established by operation of law in favor of an attorney to satisfy attorney fees and expenses out of the proceeds of a prospective judgment, in California, an attorney’s lien can only be created by contract.
Under rule 1.15 (a), however, the general rule is that both advance payments of fees and costs must be deposited into a client trust account. Funds may be transferred out of that account to pay for fees or costs only after they are incurred, earned and due under the engagement agreement. There is an exception to this general rule for flat fees, ...
A flat fee is defined by the rule as “a fixed amount that constitutes complete payment for the performance of described services regardless of the amount of work ultimately involved.”. Rule 1.5 (e). All or part of such fees may be paid before the lawyer performs those services. Fees that are “earned on receipt” or “non-refundable” are permitted as ...
There is an exception to this general rule for flat fees, discussed below. Although not prohibited by it, the former rule governing fees for legal services did not expressly address flat fees or “earned on receipt” or “non-refundable” retainers. Rule 1.5 expressly permits such payments and rule 1.15 expressly addresses the circumstances in which ...
All or part of such fees may be paid before the lawyer performs those services. Fees that are “earned on receipt” or “non-refundable” are permitted as long as they are “true” retainers and the client agrees to it in writing after disclosure that the client is not entitled to a refund of any part of the fee charged.
Most people hired attorneys because they don't want to sit in court. Well, truth be told, neither do I. The difference between lawyer and client is that the lawyer expects it to take a long time and understands. The client typically thinks it's unjustified. So, your hard truth is that each case takes time. Be patient.
If you don't pay your lawyer on the day of trial, or however you have agreed to, then while he or she may be obligated by other ethical duties to do his/her best, they won't be motivated by sympathy for you, and it will show in court.
It's expensive because we have to wait in line too. Going to court is more than dressing up in a fancy suit and knowing what papers to fill out. Attorneys have to wait in line just like the "regular folk" and we are at the mercy of the court staff just like everyone else. If you get a bill that includes time spent waiting in court, it's not usually exaggerated. While some people may stretch the truth - if you want to see whether I had to wait an hour for the case to get called, then just come with me to court. Some courtrooms have more than 50 cases on the call. Your case may not be first or even ninth. I have been number 210 on the list before. It takes time. Most people hired attorneys because they don't want to sit in court. Well, truth be told, neither do I. The difference between lawyer and client is that the lawyer expects it to take a long time and understands. The client typically thinks it's unjustified. So, your hard truth is that each case takes time. Be patient.
Credibility is one of the most important things in this world - and most important in a courtroom. If you care enough only to wear sweats to the courthouse, then the judge will see that you don't care, and that will be reflected in their desire to help you, listen to you, and decide in your favor. Step it up.
Tell the Truth. If your lawyer doubts you in the consultation, or doesn't think you have a case, while that may change over time, getting over an initial disbelief is very hard. You have to prove your case. Your attorney is not your witness. They are your advocate - but you are responsible for coming up with proof.
If the judge can see your boobs, he's not listening to your story. If I can see your boobs, then I know you didn't care enough about yourself to talk to an attorney. Dress like you are going to church. Credibility is one of the most important things in this world - and most important in a courtroom.
If no one can confirm that the story is true, you will at least need something external, such as a hard copy document, to prove your case. Be prepared.