Pro Res Outline – Bauman Fall 2010
i. MR 1.1 Competence
1. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
2. Factors in determining requisite skills:
a. Complexity and specialized nature of the matter
b. Lawyer’s general experience
c. Lawyer’s training and experience in the field in question
d. The preparation and stuffy the lawyer is able to give the matter
e. Whether it’s feasible
3. Every lawyer is capable of competence, so lack of legal knowledge or skill really means failure to seek it
4. In emergency situations, a lawyer may assist, even if they do not have the skill. It should not exceed what is “reasonably necessary” to meet that emergency.
ii. MR 1.3 Diligence
1. A lawyer shall act with reasonable diligence and promptness in representing a client.
2. Diligence: pursue a matter despite opposition, obstacles and personal inconvenience.
a. Lawyer can take whatever lawful and ethical measures are required to vindicate the client’s cause (zealous representation)
i. However, doesn’t require lawyer to press every conceivable advantage or be offensive or uncivil toward his adversary.
ii. The workload must be handled so that each matter can be adequately handled.
3. Must be prompt and not procrastinate.
4. Matter must be completed (unless fired), and if it is doubtful that it has come to an end, the lawyer should clarify.
iii. MR 1.2- Scope of Representation and Allocation of authority between Lawyer and Client:
1. Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning:
a. Whether to accept a settlement offer,
i. Att’y must tell client of all offers, unless client specifies settlement authority (“I will not accept anything under $1M)
b. What plea to enter in a criminal case
c. Whether to waive a jury trial in a criminal case
d. Whether the client will testify in a criminal case, and
e. Whether to appeal.
2. A L’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
3. The L may limit the scope of the representation if the limitation is reasonable under the circumstances, and if the client gives informed consent.
a. EX) Agreement to represent client in landlord dispute, but if the case is litigated, he must find another lawyer.
4. 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.
iv. MR 1.4- Communication
1. (a) A lawyer shall:
a. (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent
i. informed consent: client agrees to proposed course of conduct after the lawyer has sufficiently explained the material risks and alternatives
b. (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
c. (3) keep the client reasonably informed about the status of the matter;
i. If the lawyer must make an immediate decision, the lawyer need not consult with the client before acting.
d. (4) promptly comply with reasonable requests for information; and
i. If information is unavailable, the lawyer should tell the client when it will be available.
e. (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
2. Special Circumstances may apply to the amount/type of information a lawyer gives to client, depending on minor, diminished capacity, or corporate clients.
3. May delay information if the client would be likely to react imprudently to an immediate communication. The withheld information cannot serve the lawyer or third party’s interest.
4. Comment 2 – a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.
v. MR 1.5: Fees
1. When a lawyer has not regularly represented a client, the basis/rate of the fee must be communicated to the client.
a. Preferably in writing
b. Before or within a reasonable time after commencing the representation.
2. The bill should state what the client is charged for-
a. Can’t charge for ordinary overhead expenses, such as staffing, equipping, and running the office.
b. Can charge actual costs of copying, research, phone calls, overtime.
c. Cannot “double bill” time, such as working while getting paid by another client.
3. Collecting and Financing Fees-
a. Payment may be made in advance, buy any unearned portion must be returned.
b. Retainer Fee: paid solely to ensure the availability of the lawyer.
4. A fee may be contingent except where prohibited by law. (must be a reas. Representation of the lawyer’s time.
a. Contingent Fees Prohibited in:
i. Criminal cases
ii. Domestic relation cases
b. Contingent Fee Must:
i. Be in writing
ii. Signed by the client; and
iii. MUST state:
1. How the fee is calculated
2. What expenses will be deducted from recovery
3. Whether deductions will be made before or after
4. Expenses client must pay, whether or not she wins the case
iv. At the end of the case, the lawyer must give client a written statement showing how the fee was calculated.
b. 1.5 (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
i. (1) Time and labor required
ii. (2) Novelty and difficulty of the questions involved,
iii. (3) Skill requisite to perform the legal service properly (proper performance);
iv. (4) Likelihood, if apparent to the client, that the representation will preclude other employment by the lawyer.
v. (5) Fee customarily charged in the locality for similar legal services;
vi. (6) The amount involved and the results obtained;
vii. (7) The time limitations imposed by the client or by the circumstances;
viii. (8) The nature and length of the professional relationship b/t att’y and client
ix. (9) Experience,
x. (10) Reputation,
xi. (11) Ability of the lawyer or lawyers performing the services; and
xii. (12) Whether the fee is fixed or contingent.
c. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicate
ill get a portion of the recovery.
v. Types of Fees:
1. Hourly- att’y can’t double bill; may round up to the next portion of an hour unless it clearly doesn’t represent the hours worked.
a. EX) flying to a city for a client while working on another’s file doesn’t allow billing for both clients.
2. Flat
3. Contingent-
a. Pure contingent fee- att’y only collects stated % if successful outcome for client
b. Benefit- makes legal services available to those who can’t otherwise afford an att’y
c. Compensates att’y for risks taken
4. Proportional- % of estate for handling the matter
5. Combination- contingent/proportional
vi. MR 1.6 Duty of Confidentiality
1. General Rule- A lawyer shall not reveal information relating to the representation of a client unless:
2. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
3. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
a. (1) to prevent reasonably certain death or substantial bodily harm;
b. (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
c. (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
d. (4) to secure legal advice about the lawyer's compliance with these Rules;
e. (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
f. (6) to comply with other law or a court order.
4. Other Considerations
a. Corporate Clients- are the high-ranking corporate officials. Other EE’s are covered if:
i. EE communicated with lawyer at the direction of the company
ii. EE knows the purpose of the communication is to obtain legal advice for the corporation
iii. The communication concerns a subject within the scope of the EE’s duties
b. Privileged Evidence-
i. If a lawyer knows where evidence is, he isn’t bound to tell
ii. If lawyer retrieves the evidence, he must turn it in to authorities b/c he has compromised valuable evidence.
c. Third Parties- destroy ACP if they aren’t there to help and play a direct role in the communication.
5. MR 1.0(e) Informed Consent – agreement after adequate information and explanation from an atty about the risks and reasonable availability of other alternatives
