proRo class 6

hammad. 
rule 4. 2 is at issue (btw, see additional practice questions on MRPC)

lawyer has no affirmative duty to clarify his/her role unless the person is somehow confused.
if the other party's interests are at odds with the lawyer's client, the lawyer
should not give legal advice to the unrepresented person other than advice
to find and consult with counsel.

see proRo problem 3.

fees.
an extension of the att-cli fiduciary relationship. if at some point, the cli
feels that the att is overcharging, the trust may rapidly evaporate.
high costs of legal info today increase this lack of trust.

rule 1.5 (a) and (b)
a few things to notice:
- the immense discretion that this rule gives to lawyers, especially
  given that so many clients have concerns about excessive fees, it is
  noteworthy that this rule requires so little by way of disclosure
- the rule with respect to contingent fees is much more demanding,
   and require that the fees be signed to by clients and determine how
   the fees can be created and applied (rule 1.5(c))
- most lawyers bill by the hour and not by contingency, and those that
   bill by the hour don't need to do much of anything other than tell
   their clients at what hourly rate they expect to bill. that rate is
   encouraged but not required by the rules to be in writing. the rule
   is particularly vague, and there have been many cases involving
   unethical billing practices.
- is the structure of rule 1.5 in itself problematic, because it appears to
   be mooshy and malleable?


brobeck v. telex corp
after the petition for cert is filed, IBM and telex settle. then brobeck
sends a bill to telex for $1M. the district court grants summ judg to
brobeck. there were a series of negotiations for fee that happened
between brobeck and telex, and there's disagreement about what
was decided would happen if the judgment was $0, and what equated
$0.

- lanksy says he gets a retainer of $25k if the petition for cert is denied
  and there's no settlement in excess of the counterclaim.
- if the case settles before the petition is filed, lansky gets billable hrs
   not to exceed $100k.
- once the petition is filed, the contingency can be up to 5% of $100M,
   but not less than $1M.
- then there are a number of hypos

the court says that this is a contract claim: telex wanted the best lawyer
and that's what it got, and it was telex who insisted on the contingency
and telex is comprised of reasonable, seasoned business people. the lack
of response to the lawyer's hypos was agreement on telex's part.

when first contacted, lansky didn't want the contingency and said that he
would like to set the fee after he did the work on the case. does that violate
rule 1.5? is a contract that includes no price terms enforceable? yes, when
the market rate is reasonably discernable. but there's not a "market rate" for
legal services.

paragraph 3 could obviously have been written much more clearly:
"no matter what, once i file i get $1M." this is not an arm's length
transaction, there's the complication of a fiduciary agreement with the
client. and both parties are savvy contractors. but the fact that lansky
filed the petition is the service provided -- anybody could have filed
a petition, but they wanted lansky's name and reputation attached.

in re matter of fordham.
fordham is a senior attorney with excellent credentials, but he's never
had done a drunk driving case before. fordham made this clear to the
clarks. the clarks knew that he would charge them for hours spent
preparing himself and preparing the case. fordham prepared an
impressive motion to dismiss limine and brings in a mathematician
who says that a 0.2 distance is not within 0.2 and gets the breathalyzer
test tossed and gets the defendant off. the bill is $50k, which is 5 - 17x
the reasonably similar fees.

typical fees are based on the public defender, who is

2. shouldn't be charging your clients for remedial learning. but does
this have a real relationship to how the law is really practiced? attornies
begin their careers by researching areas of the law that they are not
familiar with: is it true that lawyers shouldn't be paid for the knowledge
they must amass.

if the fordham fee is excessive, why isn't the brobeck fee?

billing question: p. 130 -- the oct. 13th bill has a retroactive rate increase.
suppose the client didn't know about or specifically agree to the increase -
is this okay? in most jurisdictions, you just have to give the client notice.

hypo. the state has an $8B case against a tabacco company, that is won and
the firm on contingency should receive $2B. charging at an hourly rate, the
cost would be $200M. but the AG says that this is unconscionable, and the
fee should not be paid. who wins? according to fordham, is the $2B
excessive? is not the risk of loss worth anything? the jury agreed
with the state, and the attorneys lost about $1B.

cooperman
general retainers have always been non-refundable, and they secure the
lawyer's availablity and exclude his/her availability to the other party,
and won't accept conflicting matters. actual legal services are billed
separately.

does promising availability have real value? absolutely.

why don't these legitimacies support a non-refundable retainer?

the retainer can be a deductable, but you have to return the general
retainer that was paid upfront and retain money used in quantum meruit.

NYS fee rules are different than the model rules on this point. NYS has rule
that a lawyer shall not enter into non-refundable fee retainer
agreement but may enter a retainer agreement so long as it sets forth how
the fee is assessed and used.