Legal Professional – Prof. Brittingham – Spring 2013
Includes Midterm Exam outline & Final Exam outline
Midterm (Ch. 1-6)
· Rule 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.
§ Factors to determine if a lawyer has the requisite knowledge & skill:
¨ Complexity of the matter
¨ Lawyer’s general experience
¨ Lawyer’s training/experience in field of question
¨ Preparation & study of the lawyer to the matter
¨ Whether it was feasible for lawyer to refer the matter/consult more experienced lawyer
§ In an emergency a lawyer can give advice/assistance in matter which he doesn’t have the skill usually required – but it’s limited to that reasonably necessary in the circumstances
§ A lawyer may accept representation when knowledge can be acquired reasonable preparation.
§ Lawyer’s should keep up to date w/changing laws & continue their legal education
· Rule 1.2: Scope of Rep. & Allocation of Authority Between Client & Lawyer
o Except in certain situations, a lawyer shall abide by a client’s decisions concerning the objectives of representation & shall consult w/ the client as to the means by which they are to be pursued.
o The client has the right to authorize the lawyer to take specific action and the lawyer need not get continued authorization – authorization is implied
§ A client has the right to decide whether to settle a case. In a criminal case, it’s the client’s decision to enter a plea, waive a jury, and to testify.
o *A lawyer may limit the scope of their representation if limitation is reasonable & client gives informed consent.
o *A lawyer can’t counsel or assist a client to commit a crime or fraud- but he may give an honest opinion about the actual legal consequences that will result from the conduct.
o Lawyer can’t delegate another lawyer the responsibility of handling the case without the informed consent of the client.
· Rule 1.3: Diligence
o A lawyer shall act with reasonable diligence and promptness in representing a client.
§ A lawyer should take whatever lawful and ethical measures required to vindicate a client’s cause or endeavor.
§ A lawyer must act zealously for a client but doesn’t have to press for every advantage that might be realized for a client – doesn’t require the use of offensive tactics
§ A lawyer must have a workload that he can handle competently
§ A lawyer can’t cause unreasonable delay- but a lawyer can agree to a reasonable request for a postponement that won’t prejudice the client.
· Rule 1.4: Communication
o A lawyer shall:
§ Promptly inform the client of any decision or circumstance that requires the client’s informed consent;
§ Reasonably consult with the client about the means by which the client’s objectives will be accomplished;
§ Keep the client reasonably informed about the status of the matter;
§ Promptly comply w/ reasonable requests for info;
§ Consult with the client about any limitation on the lawyer’s conduct
§ A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions
¨ In some circumstances, a lawyer may be justified in delaying transmission of info to a client if it will harm the client (can’t withhold information to serve the lawyer’s own interest.
· Rule 1.5: Fees
o (a) Fees and expenses must be REASONABLE
§ Factors to be considered in determining reasonableness of fee:
¨ (1) Time and labor required
¨ (1a) Novelty and difficulty of the questions
¨ (1b) Skill required to perform the service properly
¨ (2) Likelihood that the work will preclude other work (if apparent to client- make sure you communicate this w/ the client)
¨ (3) Fee customarily charged in the locality for such service
¨ (4) Amount involved and the result obtained
¨ (5) Time limitation imposed by client or the circumstances
¨ (6) Nature and extent of the lawyer-client relationship
¨ (7) Experience, reputation and ability of the lawyer
¨ (8) Whether fee is fixed or contingent
o (b) Scope of the representation, the fee and expenses shall be communicated to client, preferably in writing.
o (c) Contingent fee: must be in writing, signed by the client and state the basis for the fee and the method of computing expenses. At end must show in writing the recovery and method of determination (charge a % of the recovery)
o (d) No contingent fees in domestic relations or criminal cases
§ This provision doesn’t preclude getting a contingent fee for legal representation in connection w/ the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.
o (e) Fee splitting
§ Division of fees between lawyers who aren’t in the same firm is allowed if:
¨ The division is in proportion to the services performed by each lawyer;
¨ The client agrees to the fee, it’s in writing & is reasonable
o Retainer fee
¨ Client has a lawyer on call for whenever they need them
¨ Lawyer’s money as soon as it’s given to them
§ Security/Fee advance (Dowling)
¨ First payment of the total amount that the client is ultimately going to pay you.
¨ **It remains the clients’ money until it is earned by the attorney or used as expenses.
§ *Most common today
· Rule 5.6 Restrictions on Right to Practice
o A lawyer shall not participate in offering or making:
§ (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
§ (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
· Rule 1.6: Confidentiality of Information
o (a) A lawyer shall not reveal information relating to the representation of the 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 (b).
o (b) Permissive disclosures: A lawyer may reveal confidential info to the extent he reasonably believes necessary:
§ To prevent reasonably certain death or substantial bodily harm
§ To prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another & in furtherance of which the client has used or is using the lawyer’s services;
§ 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;
§ To secure legal advice about the lawyer’s compliance with these Rules;
§ To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer & the client, to establish a defense to a cr
*Can get consent from private counsel
o Interests protected by Rule 4.2
§ Getting an admission – vicarious
§ Learning a fact or getting a document
§ Getting a concession or a settlement
§ Learning strategy or getting work-product
§ Weakening their resolve
§ Disparaging the other lawyer
o Rule 8.4:
§ It is professional misconduct for a lawyer to:
¨ (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
¨ (d) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
· Rule 1.7 Conflicts of Interests: Current Clients
o (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
§ (1) the representation of one client will be directly adverse to another client; or
§ (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
o (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
§ (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
§ (2) the representation is not prohibited by law;
§ (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
§ (4) each affected client gives informed consent, confirmed in writing.
· Rule 1.8 Conflicts of Interest: Current Clients – Special Rules
o (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
§ (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
§ (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
§ (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
o (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.