Professional Responsibility rothman spring 2011
ABA[1] Model Rules
I. Preamble § 18: violation of a rule should not give rise to cause of action nor should it create any presumption that a legal duty has been breached
CLIENT-LAWYER RELATIONSHIP
II. Competence
a. MR 1.1 requires competent representation to a client. Competence requires the (1) legal knowledge, (2) skill, (3) thoroughness, and (4) preparation reasonably necessary for the representation
• Legal Knowledge and Skill
• may not neglect a legal matter, must not take on matter attorney knows he/she is not competent to handle
• Cmt [2] does not require possession of expertise at the beginning of representation.
• Cmt [2] but basic, cross-cutting skills and knowledge are always required (e.g. understanding of use of precedent, legal research skills, ability to identify and evaluate a client’s problem, and writing or drafting skills).
• Cmt [2] Competent representation can also be provided through the association of a lawyer of established competence in the field.
• Cmt [3] Emergency: may provide limited assistance but must limit this service to that which is necessary under the circumstances.
• Cmt [4] a lawyer may accept presentation where the requisite level of competence can be achieve by reasonable preparation.
• Thoroughness and Preparation
• Cmt [5] Competence requires inquiry into and analysis of the factual and legal elements of the problem, use of methods and procedure meeting the standards of competent practitioners, as well as adequate preparation.
• Maintaining Competence
• Cmt [6] A lawyer must keep abreast of changes in the law and its practice, engage in CLE, and comply with CLE requirements.
III. Scope of Representation
a. MR 1.2(a) requires a lawyer to consult and abide by the client's decisions concerning the objectives of representation
• Cmt [2] lawyer should consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing, the lawyer may withdraw from the representation MR 1.16(b)(4). The client may resolve the disagreement by discharging the lawyer MR 1.16(a)(3).
• Clients set the goal or ends of the representation, whereas lawyers are generally empowered to determine the best means to use to achieve those ends.
• Clients: whether to accept a settlement offer. In Criminal case, what plea entered, waiver of jury trial, whether client testifies, whether to appeal.
• Lawyers: technical questions of strategy and procedure
b. MR 1.2(b) provides that a lawyer does not necessarily share the views of his client
c. MR 1.2(c) permits a lawyer to limit the scope of representation if reasonable under circumstances and the client gives informed consent
• Cmt [7] Ex.: a lawyer might agree to counsel her client about a dispute with the client’s landlord, but stipulate that if the dispute has to be arbitrated or litigated, the client will hire another lawyer for that purpose. Lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation.
d. MR 1.2(d) forbids a lawyer to assist a client to commit a crime or fraud BUT allows a lawyer to advise the client of the legal consequences of any proposed course of conduct
• Cmt [10] Lawyer must withdraw from the representation of the client in the matter. See MR 1.16(a).
• Cmt [10] Withdrawal alone might not be sufficient. 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. See MR 4.1.
• Arguably, lawyer can assist in breach of contract, regulatory law, or environmental law
• HOWEVER, MR 1.16 defines “law” broadly
IV. Diligence
a. MR 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client
• Lawyer can arguably stall for tactical reasons, financial reasons, or preparation of witnesses
• no procrastination (e.g., overlooking Statute of Limitations, act as zealous advocate, carry matters through to conclusion, terminate relationship (preferably in writing).
V. Communications
a. MR 1.4(a) requires a lawyer to keep the client reasonably informed about a matter and to promptly reply to any requests for information
b. MR 1.4(a)(1) requires a lawyer to promptly inform the client of any decision or circumstances with respect to which the client’s informed consent is required by the rules.
• Cmt [2] requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. See Rule 1.2 (a).
c. MR 1.4(a)(2) requires a lawyer to reasonably consult with client regarding means to accomplishing objectives
d. MR 1.4(a)(3) requires a lawyer to keep the client reasonably informed about the status of the matter
e. MR 1.4(a)(4) requires a lawyer to promptly comply with reasonable requests for information
f. MR 1.4(a)(5) requires a lawyer to consult with client regarding limitation on lawyer’s conduct due to Rules or other law
g. MR 1.4(b) requires the lawyer to explain a matter to a client to the extent reasonably necessary for the client to make an informed decision
VI. Fees
a. General Rule
i. MR 1.5(a) requires that a lawyer's fees be reasonable. Factors to be considered:
1. (1) time and labor, novelty and difficulty, skill required,
2. (2) likelihood of precluding other work
3. (3) customary fee charged locally
4. (4) amount involved and results obtained
5. (5) time limitation imposed by the client or by circumstances
6. (6) nature and length of professional relationship
7. (7) experience, reputation and ability of attorney
8. (8) whether fee fixed or contingent
ii. MR 1.5(b) requires scope of representation and basis of fee to be communicated to client, preferably in writing, before or within a reasonable time after commencing the representation except when lawyer will charge a regularly represented client on the same basis or rate. Changes in fees shall be communicated to client.
b. Contingent Fees
i. MR 1.5(c) provides that contingent fees must be
erest of lawyer
b. Exceptions
c. MR 1.7(b) Provides that a lawyer may represent a client if:
i. (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected clientAND
ii. (2) the representation is not prohibited by law AND
iii. (3) the[2] representation not regarding claim by one client against the other AND
iv. (4) Each affected client gives informed consents in writing
d. MR 1.10 imputes disqualification to the entire firm if a lawyer is disqualified under any provision of MR 1.7
IX. Conflict of Interest: Current Clients: Specific Rules (Conflict of interest between client and lawyer)
a. MR[3] 1.8(a) provides that lawyer shall not enter into business transactions with the client unless
i. (1) Fair and reasonable to the client, fully disclosed, transmitted in writing
• cannot get a great deal from client. Must pay fair and reasonable amount. Applies to current client only, not former client, could was until representation is over and buy. Does not apply to third party buying from client.
ii. (2) Client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek independent counsel for the transaction AND
iii. (3) Client gives informed consents in writing, signed by client
• essential terms of the transaction, lawyer’s role in transaction, including whether the lawyer is representing the client in the transaction
• MR 1.8(a) does not apply to clients’ regular commercial services that the client generally markets to others since lawyer will have no unfair advantage. Cmt [1]
b. MR 1.8(b) provides that a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents or is otherwise permitted or required under MR 1.6 and MR 3.3
• Using client’s information
• Ex.: Client planning to buy the land. Lawyer cannot buy, cannot tell others to buy because it’s disadvantage to client. If not disadvantage, ok to use information. Cmt [5]
• if not used to disadvantage client, it’s ok. Cmt [5]
[1]
8/27/12 7:52 PM
1.6 – 1.9 comment
1.10,11,12,13,15,18
1.16 comment
4.1 comment
[2]
8/27/12 7:52 PM
cannot sue client in another law suit
[3]
8/27/12 7:52 PM
trade legal service ok. (1.5)can’t buy the land without somehow disclose client what Giants is buying the land nearby
exchange for art work, etc. – ok
