1.  Contingent Fees, continued; Problem A.(3)--"Reasonableness" and contingent fees
 a.  Contingent fees subject to Rule 1.5(a) reasonableness; and can be reviewed by court as happened in Rohon v. Rosenblatt; Reasonableness in contingent fee requires lawyer to be fair and not take cases with no risk;
 b.  Problem A.(4)--contingent fee in structured settlement; Restatement;
  i.  If there is an advance fee agreement about how to divide the fee in a structured settlement, the Restatement appears to suggest that it be followed–but always subject to reasonableness review;
  ii.  If there is no advance agreement, the lawyer gets paid the lawyer’s share of each payment received by the client;
  iii.  If lawyer gets all the fee at the time of the settlement, then fee is based on present value of the settlement;
 c. Counterclaim Issue–Does lawyer get contingent fee on gross or net?
 d. Needs to be spelled out in retainer agreement, along with other difficult issues;
   (1) check/draft to be deposited and await collection;
   (2) structured settlement;
   (3) appeal;
   (4)  counterclaim issue
 e. No contingent fee in domestic relations case or one contingent on outcome of criminal case;
2.  Section E(3) Division of Fees:
 a.  Under Model Rule 1.5(e), division of fees between lawyers not in same firm can be made if:
  i.  First, either;
   (1)  the division is in proportion to the services rendered, OR
   (2)  if
    (a)  the client consents in writing and
    (b)  all lawyers who participate in the fee assume joint responsibility for the representation; AND
  ii.  Second, the client is advised and agrees to the share of each lawyer (and here there is a change from the 2001 Rules which only required that client did not object); AND
  iii.  Third, the total fee charged the client is reasonable;
 b. Chambers v. Kay simply confirms the rule and denies the attorney any fee;
 c. Fee splitting with non-lawyers–not  allowed under Rule 5.4(a); There are numerous exceptions;
  i.  First, it is permissible to share with the estate of a former member of the firm over a reasonable period of time;
  ii.  Second, it is permissible to pay the estate of a deceased or disappeared lawyer the reasonable value of the practice of that lawyer when purchasing that practice under Rule 1.17;
  iii.  Third, non-lawyer employees of the lawyer may be included in a firm benefit plan even though that plan is funded entirely by law firm fees;
  iv.  Fourth, may share legal fees with a non-profit organization if that organization hired or recommended the lawyer;
3.  Section F--Attorney Malpractice: Malpractice and other Remedies;
 a.  F(1) Basic Obligation of Care:  Togstad v. Vesely, Otto, Miller & Keefe, Privity is required in malpractice action;
 b. Togstad gives two theories;
;
Under a Tort theory
 Duty--Supplied by A/C relationship;
 Breach of one of those duties;
 damages;
 causation;

Under a Contract theory
 Request by Client that lawyer provide services (Offer);
 Consideration by Client which can be based on reliance;
 Acceptance by Attorney;
 Breach of one of the contracted for obligations;
 c. Togstad found a relationship which gives us duty in tort and the contract relationship in contract;
  i. “But for causation” is used in most cases;
  ii. Lawyer violates a Rule of Professional Conduct;
   (1) Use as evidence, but is not, alone, malpractice;
  iii. Case within a case–must have won case below;
  iv. Appeal–must show lost appeal and would win below;