Professional Responsibility
Dean Chinaris
Sanders/Spring 2013
GENERAL
· ABA not controlling, each state adopts it
· To whom do lawyers owe a “responsibility”?
o Ourselves
o Clients
o Other lawyers
o The justice system
o 3rd parties and nonclients
o The public
· Consequences of not understanding the “Law of Lawyering”
o Damage to professional reputation, malpractice liability, disciplinary sanctions, loss of clients, disbarment
· Definitions
o Rule 1.0(f) – “knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
o Rule 1.0(e) – informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
CLIENT-LAWYER RELATIONSHIP
· Client Identity Issue
· Formation
o Consensual relationship, but consent can be implied from the circumstances
o Key often is the would-be client’s belief, as long as that belief is reasonable
§ Client’s reasonable, subjective belief (Green v. Montgomery)
· 1.1 – Competence
o A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
o Notes:
§ C1: Relevant Factors:
· The relative complexity and specialized nature of the matter,
· The lawyer's general experience,
· The lawyer's training and experience in the field in question,
· The preparation and study the lawyer is able to give the matter and
· Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
§ C2: A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This includes novel fields with appropriate study.
§ To maintain the requisite knowledge and skill, lawyer should keep up with changes in law and get CLE…
· 1.2 – Scope of Representation & Allocation of Authority Between Client & Lawyer
o (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.
o A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.
o A lawyer shall abide by a client's decision whether to settle a matter.
o In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
o (b) Representation does not constitute endorsement of client’s views
o (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
o (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
o Notes:
§ C2: Rule does not tell us how disagreements are to be resolved. Other law may be applicable, and lawyer should consult and seek a mutually acceptable resolution. If fundamental disagreement, lawyer may withdraw or client may discharge lawyer.
§ C7: Although the rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances.
§ C9: Paragraph d does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct.
§ C10: In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like.
· 1.3 – Diligence
o A lawyer shall act with reasonable diligence and promptness in representing a client.
o Notes:
§ C2: A lawyer's work load must be controlled so that each matter can be handled competently.
§ C3: Perhaps no professional shortcoming is more widely resented than procrastination.
§ The most common complaint against lawyers is neglect
· A lawyer shall not willfully neglect a legal matter entrusted to him.
§ Very few disciplinary actions taken under this rule because there is a difference between procrastination and negligence
· Neglect involves indifference and a consistent failure to carry out the obligations lawyer has assumed or conscious disregard for responsibility owed to client. Neglect involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of ere inadvertent or the result of an error of judgment made in good faith.
§ C5: Duty of diligence may require that a sole practitioner prepare a plan that designates another competent lawyer to review client files, notify client of death, etc.
§ C4: If lawyer has served client over substantial period of time in variety of matters, client may assume the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt should be clarif
s;
§ The amount involved and the results obtained;
§ The time limitations imposed by the client or by the circumstances;
§ The nature and length of the professional relationship with the client;
§ The experience, reputation, and ability of the lawyer or lawyers performing the services; and
§ Whether the fee is fixed or contingent.
o (b) Shall communicate, preferably in writing, fee or expense and scope of representation within a reasonable time, except where regularly represented client on same basis or rate
o (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in domestic (divorce, alimony) and criminal.
§ A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined,
§ The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.
§ Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
o (e) Division of fee between attorneys not in same firm may be made if:
§ Proportionate to services performed or each lawyer assumes joint responsibility for the representation
§ Client agrees to the % split
§ Confirmed in writing
§ Total fee is reasonable
o Notes:
§ Types
· If disqualified, not contract rate, quantum meruit (reasonable value of the services you rendered prior to discharge)
· Hourly (Set hourly rate, but do not bill in hour increments, include overhead)
· Flat
· Contingent (Contingent on uncertain event and often a percentage)
· Percentage
· Mixed
· “Value billing”
§ Collecting attorney’s fees
· Retaining liens
o Possessory lien (statutory or common law – varies by state)
· Charging liens
o Fee to be paid from recovery in that case
o Notice to interested parties
§ C1: Expenses for which the client will be charged must be reasonable. Expenses can include in-house copying, telephone charges or amount that reasonably reflects cost incurred.
