February 2009 Article by Carole Buckner Covers Many Ethical Issues.
In the February 2009 edition of the Orange County Lawyer, Carole J. Buckner writes an article, “Ethics Opinions Provide Guidance in Resolving Attorneys’ Fee Issues,” covering a wide-ranging array of ethical issues relating to attorney’s fees.
Here is a synopsis of issues discussed in the article:
- Restoration of Previously Disbursed Contingency Fees—No necessity to return fixed contingency fees that are disbursed from a client trust account before any dispute arises with the client (California State Bar’s Committee on Professionalism and Conduct [COPRAC] Formal Opinion No. 2006-171);
- Credit Card Payment of Fees/Expenses—An attorney can accept earned fees from a client by a credit card (as long as the description on the charge slip is generic and does not divulge privileged information), can deposit fees that not earned via credit card into client trust accounts (although there are ethical considerations to this procedure), and cannot pay advances for costs and expenses by credit card
(COPRAC Formal Opinion No. 2007-172);
- Successor Counsel’s Duties to Prior Counsel in Contingency Fee Matter—Successor counsel has a duty to notify prior counsel of a settlement, advising client of this duty even if client has issued contrary directives, attempting to persuade the client to consent to disclosure of the settlement to predecessor counsel, and ultimately disclosing the nonprivileged details of the settlement to predecessor counsel (COPRAC Formal Opinion No. 2008-175);
- Attorney Charging Lien in Contingency Fee Arrangement—An attorney’s charging lien in an initial contingency fee agreement does not have to require with California Rules of Professional Conduct (RPC), rule 3-300 disclosure/consent requirements (COPRAC Formal Opinion No. 2006-170; see also our category, “Cases: Liens for Attorney Fees” for the discussion on whether Fletcher v. Davis applies in a contingency situation);
- Settlement of Cases Involving Statutory Fees—Plaintiff’s lawyer in a statutory fees case cannot block a settlement requiring waiver of statutory fees if the client wishes to settle, and the defense can ethically make such a settlement offer without running afoul of rules (COPRAC Formal Opinion Interim No. 98-0001, disagreeing with Los Angeles Count Bar Assn. [LACBA] Formal Opinion No. 445 (1987));
- Modification of Fee Agreement—Modification of a fee agreement is not a business transaction with a client requiring compliance with RPC, rule 3-300, including the opportunity to seek independent counsel in connection with the modification (COPRAC Formal Opinion Interim No. 05-0001, although concluding “close scrutiny” should to applied to the modification for purposes of determining if it is fair and reasonable);
- Enforcement of Charging Liens—COPRAC Formal Opinion Interim No. 06-001 addresses the ethical dilemma for successor counsel when client instructs successor to endorse a settlement check payable to client’s present and former counsel; and
- Settlement of Fee Dispute/Malpractice Claim—Once a malpractice claim is asserted in connection with a fee dispute, the lawyer needs to advice the client to obtain independent advice in order to reach a settlement with Civil Code section 1542 waivers (COPRAC Formal Opinion Interim No. 06-0006).
Comments