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| Ch. 93A: MA Consumer Protection Act |
provides public and private remedies to people injured as a result of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce
(within torts, contracts, property questions)
relief: though tort or contract action
requirement: transaction must occur primarily and subs. in MA
does NOT cover: completely private transactions not undertaken in normal course of trade or business
business sues business: Section 11 (must prove damages)
statute of limitations: 4 yrs EXCEPT landlord-tenant: 3 yrs
individual sues business: Section 9 (requires 30-day demand letter before filing suit) |
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Robin Sun, 28 Jun 2009 21:26:37 GMT |
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| IOLTA |
interest on lawyer trust account:
paid to MA legal assistance corp. and other charities designated by MA SJC |
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Robin Sun, 28 Jun 2009 21:26:37 GMT |
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| Special rules of trust accounts |
- must be in MA or elsewhere with client's permission
- promptly notify clients when $ comes in
- keep records for 6 yrs after
EXCEPTIONS to req. to keep trust account:
- retired lawyers
- dead lawyers
- professors
- judges
- inactive lawyers (formal status with bar) |
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Robin Sun, 28 Jun 2009 21:00:55 GMT |
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| Retainer |
- client account (advanced fees deducted)
- availability (earned instantly, whether worked or not) |
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Robin Sun, 28 Jun 2009 20:59:05 GMT |
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| Fee-splitting |
NO splitting legal fees with non-lawyer
ok to split non-legal fees with non-lawyer
EXCEPT:
- salaries, retirement plans, bonuses, profit sharing
- spouses of deceased partners to pay fees earned by deceased partner |
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Robin Sun, 28 Jun 2009 20:59:05 GMT |
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| Contingency fee |
NOT in criminal cases or domestic relations cases (EXCEPT: past due child support and alimony = violation of duty, breach of contract) |
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Robin Sun, 28 Jun 2009 20:56:43 GMT |
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| Firm conflicts |
screen lawyers:
- notify other side
- lawyer prohibited from file access
- lawyer gets no fees
on BAR EXAM:
- MAY conflict out the whole firm |
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Robin Sun, 28 Jun 2009 20:56:43 GMT |
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| Client representation |
ALWAYS a conflict to simultaneously represent clients
past/current clients: ok if past client consents but NOT in same matters or if relevant confidential info obtained |
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Robin Sun, 28 Jun 2009 20:56:43 GMT |
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| Conflicts of interest |
client must give informed consent after lawyer explains material risks and reasonable alternatives and client agrees in writing
wills: cannot receive interest EXCEPT
- family members
- de minimis or nominal gifts (objective test)
lending $ to clients:
- may advance costs of litigation w/ repayment contingent |
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Robin Sun, 28 Jun 2009 20:56:43 GMT |
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| Exceptions to confidentiality |
- required by court, law
- with client consent after consultation
- to prevent death or subs. bodily harm/injury to financial or property interests of another or wrongful incarceration
- to rectify fraud
- to collect fee, protect reputation |
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Robin Sun, 28 Jun 2009 20:34:55 GMT |
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| Sale & purchase of law practice (incl. good will) |
OK if:
- written notice given to clients
- fee arrangements not changed
- clients told about rights to get new lawyer
(consent presumed if client does not act for 90 days)
- whole practice must be sold |
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Robin Sun, 28 Jun 2009 20:33:32 GMT |
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| Targeted mail |
- ok to send direct mail to person/group known to face a specific legal problem
- must include disclaimer that person may report anything inappropriate, confusing
- must NOT be sent by certified mail (misleading)
- must read: "this is an ad"
- client names in ad require consent
- name of at least 1 responsible atty must be in ad
- ad must be kept for 2 yrs after dissemination with a record of where/when used
* avoid SOLICITING clients for fee-paying work by means of direct personal contact
- 45-day prohibition on contacting victims of national disasters
* if you give unsolicited advice, do NOT accept related employment (but ok if they contact you) |
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Robin Sun, 28 Jun 2009 20:33:32 GMT |
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| Specialization |
"certification" requires:
- by private organization which is named
- that its standards are not regulated by the Commonwealth OR by a governing body which is named |
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Robin Sun, 28 Jun 2009 20:33:32 GMT |
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| Firm names |
- cannot be misleading
- can keep names of people temporarily away but not if disbarred
- names must be real |
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Robin Sun, 28 Jun 2009 20:33:32 GMT |
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| Non-compete agreements |
NOT allowed EXCEPT:
- retirement
- departure from firm
if reasonably limited |
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Robin Sun, 28 Jun 2009 20:05:22 GMT |
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| Do not help non-lawyers engage in the unauthorized practice of law |
except: advice on self-representation
NOTE: but not helping perform legal activities |
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Robin Sun, 28 Jun 2009 20:05:22 GMT |
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| Client loses ability to make decisions, diminished capacity, etc. (incl. minority) |
- maintain relationship as much as possible
if physical, financial, other risk:
- consult family members or adult protective agencies
- may seek appt. of guardian/conservator
* limit confidential info to extent necessary |
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Robin Sun, 28 Jun 2009 20:04:00 GMT |
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| Competence to take cases |
- physically and mentally able
- legal expertise
- time |
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Robin Sun, 28 Jun 2009 20:02:48 GMT |
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| Decisions |
client: settle, appeal, testify, costs
attorney: procedural, tactics, strategy |
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Robin Sun, 28 Jun 2009 20:00:54 GMT |
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| Activities that do NOT require a license |
- interview
- filling in forms
- writing legal memos |
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Robin Sun, 28 Jun 2009 20:00:25 GMT |
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| Activities requiring license |
- appearances in judicial proceedings, depositions
- drafting docs that affect substantial client rights (wills, contracts)
- negotiating settlements |
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Robin Sun, 28 Jun 2009 20:00:03 GMT |
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| Permissible temporary multi-jurisdictional practice |
- associate with active local lawyer
- special permission (pro hac vice--for that matter only)
- mediation/arbitration out of home state
- anything reasonably related to lawyer's home state practice |
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Robin Sun, 28 Jun 2009 20:00:03 GMT |
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| Regulation after admission |
SELF-regulating:
- inform Bar Counsel's office (judge: report to Commission on Judicial Conduct)
- be available to testify (cannot report anonymously)
* except in representing a lawyer |
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Robin Sun, 28 Jun 2009 20:00:03 GMT |
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| Bar admission |
MA: voluntary
US Sup Ct.: state reqs for bar admission must be rationally related to the practice of law:
- graduation from ABA school
- take oath
NOT rational:
- US citizenship
- state residency
moral character:
- truth, full disclosure
- no knowingly make false statement of material fact
- not fail to disclose facts necessary to correct a misapprehension
- duty to cooperate |
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Robin Sun, 28 Jun 2009 20:00:03 GMT |
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| Discipline |
- admonishment
- public reprimand
- suspension
- disbarment |
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Robin Sun, 28 Jun 2009 19:54:01 GMT |
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| Bar Counsel recommendations |
- dismissal
- admonishment
- formal proceeding
- formal discipline by agreement |
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Robin Sun, 28 Jun 2009 19:54:01 GMT |
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| Complaints |
investigated by a Board of Overseers appointed by SJC, which appoints a Chief Bar Counsel to conduct a preliminary investigation |
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Robin Sun, 28 Jun 2009 19:54:01 GMT |
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| Source |
MA Rules of Professional Conduct |
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Robin Sun, 28 Jun 2009 19:54:01 GMT |
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