Chapter 4

1. Chapter 4 Settling Disputes

2. 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?

3. 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?

4. 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

5. 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

6. 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?

7. 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.

8. 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.

9. 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.

10. 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.

11. 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 ________________.

12. 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.

13. 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.

14. 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.

15. 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

16. 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.

17. 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

18. 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

19. 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