PowerPoint Presentation

Century Law Group LLPEdward O. Lear, Esq.

State Bar defense

Legal malpractice expert witnessEthics consultationsProfessional licensing defense (doctors, accountants, realtors, insurance brokers, etc.) www.CalStateBarDefense.comFee disputes

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State Bar of California: Overview of Disciplinary ProcessInquiriesClosedInvestigationInvestigation/Trial UnitCloseOther resolutionFile Notice of Disciplinary ChargesTrial at State Bar Court of California

State Bar Court System

California Supreme Court May review State Bar Court decisions

Review Department Appellate level Consists of presiding judge and 2 other review judges

Hearing Department Trial level Composed of 5 full-time judicial positions split between LA & San Francisco

Sources of ComplaintsA clientwww.CalStateBarDefense.comThe courtOpposing counselMembers of the public Including estranged spousesThe State Bar itself Usually through news reports Conviction referrals

Why the sharp increase in 2009 & 2010?www.CalStateBarDefense.comNew ComplaintsReceived2007200820092010201120122013201413,53513,58517,10317,38615,71914,82013,04812,744

Retainer Agreements: You Can Protect Yourself

www.CalStateBarDefense.comI.e.: Client wants 20 depositions and/or defendant is judgment proof

Clients demandsvs. Attorneys cost obligations

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www.CalStateBarDefense.comExcerpt from Retainer:shall vs may

may Firm shall advance and then be reimbursed all outstanding costs and litigation expenses incurred by the Firm in connection with legal services performed under this Agreement.

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Rules of Professional ConductRule 3-700 (A)(2) www.CalStateBarDefense.comRule 3-700 (A)(2) A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.

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www.CalStateBarDefense.comRecovery is limited to quantum meruit the reasonable value of services. (See, Fracasse v. Brent)

Fee DisputesIf early in the process:If contingency representation ends before case is resolved, can you still collect fees?

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www.CalStateBarDefense.comEntire fee may be the reasonable value of attorneys services. (See, Fracasse v. Brent)

Fee DisputesIf late in process: (i.e., discharged on the courthouse steps)If contingency representation ends before case is resolved, can you still collect fees?

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(B) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events www.CalStateBarDefense.comRules of Professional Conduct Rule 4-200 Fees for Legal Services

www.CalStateBarDefense.com(1) The amount of the fee in proportion to the value of the services performed.

(2) The relative sophistication of the member and the client.

RPC 4-200(B) Factors in determining conscionability of a fee (3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.

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www.CalStateBarDefense.com(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.

(5) The amount involved and the results obtained.

RPC 4-200(B) Factors in determining conscionability of a fee

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www.CalStateBarDefense.com(7) The nature and length of the professional relationship with the client.

(8) The experience, reputation, and ability of the member or members performing the services.

(6) The time limitations imposed by the client or by the circumstances.

RPC 4-200(B) Factors in determining conscionability of a fee

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www.CalStateBarDefense.com(10) The time and labor required.

(11) The informed consent of the client to the fee.

(9) Whether the fee is fixed or contingent.

RPC 4-200(B) Factors in determining conscionability of a fee

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How do you ensure referral fee agreement is enforceable?www.CalStateBarDefense.comGet your name in the retainer agreement between new attorney and client.

Rule 2-200 of California Rules of Professional Conduct

Referral Fee

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(A) A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member unless:www.CalStateBarDefense.com(1) The client has consented in writing thereto after full disclosure in writing that a division of fees will be made and the terms of such division; andRule 2-200 of California Rules of Professional Conduct(2) The total fee charged by all lawyers is not increased solely by reason of the provision for division of fees and is not unconscionable as that term is defined in rule 4-200.

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Selected Duties of an AttorneyBusiness and Professions Code 6068(a) To support the Constitution and laws of the U.S. and of this State.www.CalStateBarDefense.com(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.www.CalStateBarDefense.com(e) To maintain the confidenceof his or her client.

Selected Duties of an AttorneyBusiness and Professions Code 6068

www.CalStateBarDefense.com(i) To cooperate and participate in any disciplinary investigation or other regulatory disciplinary proceeding pending against himself or herself.

Selected Duties of an AttorneyBusiness and Professions Code 6068

(m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed... www.CalStateBarDefense.comSelected Duties of an AttorneyBusiness and Professions Code 6068Return your clients phone calls and emails!

Affirmative Duties of an AttorneyBusiness and Professions Code 6068www.CalStateBarDefense.com(1) The filing of 3 or more malpractice suits against an attorney in 12 month period.

(2) Entry of judgment against an attorney for fraud, misrepresentation, breach of fiduciary duty, or gross negligence in a professional capacity.

(o) To report in writing, within 30 days, any of the following:

www.CalStateBarDefense.com(3) Imposition of judicial sanctions against an attorney, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000.

(4) The bringing of an indictment or information charging a felony against the attorney. Affirmative Duties of an AttorneyBusiness and Professions Code 6068(o) To report in writing, within 30 days, any of the following:

www.CalStateBarDefense.com(5) Conviction of the attorney of:a felonya misdemeanor associated with practice of law, or where client was a victim, ora necessary element of which involves improper conduct of an attorney including dishonesty or other moral turpitudean attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.

Affirmative Duties of an AttorneyBusiness and Professions Code 6068(o) To report in writing, within 30 days, any of the following:

www.CalStateBarDefense.com(6) Imposition of discipline against attorney by a professional occupational disciplinary agency.

(7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney.Affirmative Duties of an AttorneyBusiness and Professions Code 6068(o) To report in writing, within 30 days, any of the following:

www.CalStateBarDefense.comMartinez v. State of California, Department of Transportation (Cal. App. 4th Dist. June 12, 2015)Martinez sued Caltrans over motorcycle accident. Jury returned verdict for Defendant Caltrans.Appeals Court reversed judgment based on egregious attorney misconduct by Defense Counsel.

Violated judges in limine ordersRepeated questions after judge sustained objections to them.

www.CalStateBarDefense.comA Civil Action Paramount Pictures, 1998Synopsis: Jan Schlichtmann (John Travolta) is a personal injury attorney, representing alleged victims of chemical pollution of a river. The defendants are two deep-pocketed factory operators, represented by two huge Boston law firms.

www.CalStateBarDefense.comA Civil Action Paramount Pictures, 1998

www.CalStateBarDefense.comThe RainmakerParamount Pictures, 1997Scene synopsis: Rudy Baylor (Matt Damon), a recent law school graduate, accompanies paralawyer Deck Shifflet (Danny DeVito) into a hospital.

www.CalStateBarDefense.comThe RainmakerParamount Pictures, 1997

Century Law Group LLPEdward O. Lear, Esq.

State Bar defense

Legal malpractice expert witnessEthics consultationsProfessional licensing defense (doctors, accountants, realtors, insurance brokers, etc.) www.CalStateBarDefense.comFee disputes

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