Hansford – Legal Pro – Spring 2013
Chapter 2: The Basic Elements of Law Practice
Defining the Practice of Law
i. The prohibition of unauthorized practice is generally a matter of Unauthorized Practice of Law (UPL) statutes and not of ethics rule.
ii. The comment to Rule 5.5 explains that “the definition of the practice of law is established by law and varies from one jurisdiction to another.”
Working with non-lawyers
i. Rule 5.3: The Lawyer must make a reasonable effort to ensure that the firm has taken reasonable effort to assure that the non-lawyer’s conduct is compatible with the professional obligations of the lawyer.
ii. Rule 5.4(a):
1. A lawyer should not share legal fees with a non-lawyer except:
a. To a non-lawyer after a lawyers death
b. To the deceased lawyer’s estate to buy his portion of the firm
c. To a non-lawyer who is an employee in a compensation or retirement plan. Even though the plan is based in whole or in part on a profit-sharing arrangement; AND
d. To a non-profit organization who retained or recommended the lawyer for that matter
2. A lawyer shall not form a partnership with a non-lawyer if any of the activities consist of the practice of law.
3. A lawyer shall not allow someone who recommends or employs the lawyer to regulate the lawyer’s professional judgment in rendering said legal services.
4. A lawyer shall not practice with a professional corporation for profit if:
a. A non-lawyer owns any interest in the company
b. A non-lawyer is a corporate director or officer
c. A non-lawyer has the right to direct or control the professional judgment to a lawyer.
i. Rule 5.7(b)
1. Defines “law-related services as services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as UPL when provided by a non-lawyer.
ii. Rule 5.7(a): Makes a lawyer subject to discipline if the law-related services are provided:
1. By the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
2. If the lawyer does not take reasonable measures to assure that a person who is obtaining the legal services knows that the services are not legal services and that the protections of lawyer-client relationship do not exist.
a. The burden is on the lawyer to show that they have taken reasonable measures to communicate the desired understanding.
iii. Rule 1.8(a): Governs business transactions with a client and forbids a lawyer from entering into a business transaction with a client unless:
1. The means by which the lawyer acquires the interest is fully disclosed, transmitted in writing, and can be easily understood by the client
2. The client is given a reasonable opportunity to consult independent counsel
3. The client gives informed consent, in a signed writing.
Unauthorized Practice by Lawyers
i. Rule 5.5:
1. A lawyer shall not practice or assist another in doing so in a jurisdiction they are not allowed to practice in.
2. A lawyer who is not admitted to practice in a certain jurisdiction shall not:
a. Establish a continued present in this jurisdiction for the practice of law (set up an office) or;
b. Represent to the public that the lawyer can practice in this area.
3. A lawyer who is admitted in another U.S. jurisdiction may provide legal services on a temporary basis in this jurisdiction that:
a. Are related to a pending action before a tribunal in this jurisdiction or the person they are assisting is authorized by law to appear in said jurisdiction.
b. Or, if the services are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
4. A lawyer admitted in another U.S. jurisdiction may provide legal services in this jurisdiction that”
a. Are provided to the lawyer’s employer and are not services for which the forum requires pro hac vice admission.
b. Are services the lawyer is authorized to provide by federal law or other law of this jurisdiction
ii. Rule 8.5
1. A lawyer is subject to discipline in the jurisdiction they are licensed to practice, regardless of where the violation occurs. A lawyer not admitted to practice in this jurisdictions also subject to that districts discipline, or both jurisdictions.
a. Local rules apply, unless the tribunal provides otherwise
b. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction which the lawyer reasonably believes the predominant effect of the lawyers conduct will occur.
Creating the Lawyer-Client Relationship
The determination of whether a lawyer-client relationship exists is a matter of state law, but Restatement 14 provides a general rule:
i. A lawyer-client relationship arises when:
1. A person manifests to a lawyer the person’s intent that the lawyer provides legal services for the person; and either
a. The lawyer manifests to the person consent to do so; or
b. The lawyer fails to manifest lack of consent, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services
2. A lawyer-client relationship arises when a tribunal with power to do so appoints the lawyer to provide services.
Rule 6.2: states that as a matter of “public service” a lawyer should generally accept the court appointment and shall not seek to avoid appointment to represent a person except for good cause such as:
i. If representing the client is likely to result in a violation of the Rules of Professional Conduct or other law
ii. Place an unreasonable financial burden on the lawyer; or
iii. The client or the cause is so bad or against their values that it could affect the lawyers ability to represent the client
Ending the Lawyer –Client Relationship
Restatement 31: Just as mutual consent is usually a prerequisite to creating the lawyer-client relationship; the end of such consent usually ends the relationship.
i. Consent might end because the lawyer or client withdraws consent or becomes incapable of giving a valid consent.
ii. Or, the lawyer might have completed the representation or have become incapable of providing services to completion.
Rule 1.16 governs the termination of the lawyer-client relationship, a lawyer is required to withdraw from representation if:
i. it will result in a violation of the rules of professional conduct or law
ii. the lawyer’s physical or mental condition impairs their representation or
iii. the lawyer is fired
A lawyer may withdraw from representation under the following circumstances:
i. Withdrawal can be accomplished without adverse effect on the client
ii. The client wants the lawyer to take a course of action that the lawyer thinks could be criminal or fraudulent;
iii. The client has used the lawyers services to commit a crime of fraud
iv. The client insists upon taking action that the lawyer has a fundamental disagreement
v. The client fails to fulfill an obligation (paying) to the lawyer and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.
ii. This duty does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
iii. A lawyer’s work load must be controlled so that they can handle each case competently
Rule 1.4: A lawyer shall:
i. Inform client of any decision
ii. Consult client about the means to accomplish the client’s objectives
iii. Keep the client informed on the status of the matter
iv. Promptly comply with request for information
v. Tell the client about any limitation on the lawyers conduct
vi. Explain the matter to the extent that the client can make an informed decision regarding representation.
Rule 3.2: A lawyer shall make reasonable efforts to expedite litigation.
i. Cannot delay for financial benefit (getting more money from client).
Rule 1.14: Client with a diminished capacity
i. Disability: When a client’s capacity has diminished, the lawyer shall as far as reasonably possible, maintain a normal client-lawyer relationship.
ii. When the lawyer believes the client has diminished capacity and that diminished capacity will affect the client’s interest, the lawyer may take reasonably necessary protective action (assign a guardian).
iii. Children: Children as young as 5-6 and certainly those of 10 – 12 are regarded as having opinions about their custody.
1. The lawyer may consult the guardian/parent in certain areas, but likely should not if it affects the minors representation/interest.
Finding and Billing Clients
Solicitation: Direct contact with prospective client.
i. A lawyer shall not solicit employment when a significant motive is the lawyers financial gain, unless the person contacted:
1. Is a lawyer; or
2. Has a family, close personal, or prior relationship with the lawyer
ii. A lawyer shall not solicit employment by written, recorded, electronic communication of by in-person if:
1. The target of the solicitation has made known they do not want to be solicited; or
2. The solicitation involves coercion, duress or harassment
i. A lawyer shall not make false or misleading communications about the lawyers services
1. A communication is false or misleading if it contains a material misrepresentation of fact or law.
2. Truthful statements that are misleading are also prohibited by this rule
3. An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if it is used to say that those same results could be respected from future clients.