Chapter 4

Settling Disputes

Legal System

• Our legal system is an adversarial system - In essence both parties of a legal dispute are

opponents- Lawyers represent each side with a zealous effort to

win- Judge and/or Jury are supposed to be impartial fact

finders/rulers

- Inquisitorial System- Judge asks the questions and examines the

witnesses- Benefits associated with each?

Who May Practice Law?

• Attorneys must be licensed– Have to graduate from an accredited law school– Have to pass the BAR exam not the Boards.

• Fiduciary Relationship– A relationship between two persons wherein one has

an obligation to perform services with scrupulous good faith and honesty.

• In propria persona “one who serves as his own lawyer has a fool for a client.”– Why do you think lawyers hire other lawyers to

represent them in court?

What about the poor?

• Who represents the poor and down trodden?– Legal Aid Services

• State funded• Don’t do divorces

– Lawyers who charge a contingency fee (an arrangement where the attorney agrees to represent the client for a share of the settlement)

– Pro bono services

Legal Malpractice

• Is a civil cause of action that may be brought by a client against his/her attorney alleging negligence or wrongdoing.

• Must show “but for” causation.– Also must prove you are worse off

• Malpractice examples:– Not disclosing a conflict of interest– Not doing proper research

• Attorney has the right to breach duty of confidentiality in a malpractice case if necessary

Unauthorized Practice of Law

• The above heading is why I don’t answer your questions about law.

• Filling out blank legal forms is o.k.– Rendering legal advice is not o.k. for non-

lawyers

• Familiarize yourself with exhibit 4-2 pg. 172

• Do accountants cross the line?

Ethics

• Lawyers have to abide by the code of legal ethics of their state

• Model rules of professional ethics.– May be punished for moral purpitude.– Moving away from morality issues.

• Violations– Disbarment, suspension, probation, letter of

reprimand– Punishment will depend on what the lawyer did.

Do’s And Don’ts

• Must refrain from talking directly to those who are represented by a lawyer without that lawyer being present

• Cannot give legal advice to the unrepresented if you(the lawyer) represent the opposing side.

• Must maintain separate account for client funds– Cannot pay expenses directly from that fund even if

you are owed part of the money– Must keep disputed amounts of money in the account

also.

Attorney Client Privilege

• Rule of Evidence Law and not ethics.

• Privilege protects all communications between lawyer and clients.

• Only if a few exceptions can a court require that the lawyer violate that duty.

• Client can waive the privilege

• Lawyer must prevent future crimes including perjury.

More Do’s And Don’ts

• Conflicts of Interest• Have an interest that prevents absolute zealous

representation• Common examples

– The lawyer has represented or currently represents the other side in legal matters

– A lawyer has a blood relationship with someone on the opposing side.

– Named as a beneficiary under a will.

• Clients can consent.

Frivolous Lawsuits/Defenses

• Lawyers must not file frivolous lawsuits.

- tort reform

• Frivolous lawsuits give rise to damage claims by the defendant.

• Defense lawyers cannot try to use defenses that they believe have no merit– One major exception ________________.

Getting Clients

• Attorney cannot pay for referrals. Can promise nothing in return.

• Have a duty to take court ordered appointments– Unless undue financial burden– Find the defendant’s action repugnant to a

degree that zealous avocation will not be possible.

Solicitation

• Lawyers cannot chase ambulances– No telephone calls directly to victims– Letters are o.k. if they are marked

“Solicitation” on the outside– General rule is that lawyers cannot directly

pursue those who they know need their services. Cannot have agents do so either.

• Exceptions: emergency, no charge, preexisting relationship with the person.

Advertising

• Have to put name and address on advertisement

• Cannot promise a favorable outcome or even hint at one.– Example: “I have won every jury trial I have

conducted!”

• Can list certifications

• Can list areas of practice.

Attorney’s Fee

• Two types of retainer– General retainer – Client pays lawyer a set

fee to make sure the lawyer is available at the clients request.

• Lawyer must return unused portion

– Flat Fee - $1000 per OWI• Allowed as long as reasonable

• Contingency fees generally allowed as long as the fee is reasonable and its not a criminal case

More Money Issues

• Certain statutes allow the recovery of fees– Example: if Brothers has to take you to court

to collect on a bad check – you may have to pay their attorney fees and even their travel expenses.

• Attorneys cannot become financially involved in the outcome of the case– No asking for book rights– May advance litigation costs but not living

costs.

Alternative Dispute Resolution

• Negotiation– The parties to a lawsuit try to negotiate a

settlement with or without lawyers– 99% of all cases are settled

• Mediation– The parties to a lawsuit bring in a neutral third

party who tries to find common ground between the two parties

ADR Continued

• Arbitration– Also uses a neutral third party but with

arbitration the settlement is usually binding– Often contracts have arbitration clauses– Still may have to file a claim in court to compel

arbitration

Other Types of ADR

• Early Neutral Case Evaluation– A third party evaluates the weaknesses and strengths

of each party and this analysis becomes the basis for a negotiation

• Mini Trial – Private trial between each sides often with a neutral advisor present

• Summary Jury Trial – a mini trial in court complete with jury but the decision is not binding