1. PROFESSIONAL RESPONSIBILITY: OUTLINE
1.1 Model Rules
Rule 1.1: Competence – a lawyer must provide competent representation which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Legal Knowledge and Skill
i. C1: Factors include 1) relative complexity and specialized nature of the matter, 2) lawyer’s general experience, 3) the lawyer’s training and experience, 4) the preparation and study the lawyer is able to give the matter, 5) whether it is feasible to refer the matter to someone competent in the field.
ii. C2: lawyer need not have special training or prior experience. A newly admitted lawyer may be just as competent as a practitioner with lots of experience.
iii. C3: a lawyer may give advice or assistance in an emergency if it is reasonably necessary.
Thoroughness and Preparation
i. C5: Competence requires inquiry into and analysis of the factual and legal elements of the problem as well as adequate preparation.
i. C6: A lawyer must keep abreast of changes in the law and its practice.
Rule 1.2: Scope of Representation –
Lawyers control the means, the client controls the ends. A lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are pursued. A lawyer shall abide by a client’s decision to settle a matter. Rule 1.2(a) In a criminal case, the lawyer shall abide by the client’s decision as to a plea to be entered, whether to waive a jury trial, and whether the client will testify. Rule 1.2(a)
A lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views.
A lawyer may limit the scope of the representation.
A lawyer shall not counsel a client to engage, or assist, in conduct the lawyer knows to be criminal or fraudulent, but a lawyer may discuss legal consequences of any proposed course of conduct. Rule 1.2(d)
i. C2: if lawyer and client have fundamental disagreement about objectives and means, lawyer can withdraw – Rule 1.16(b)(4) – or the client can fire the lawyer – Rule 1.16(a)(3).
ii. C3: Client may authorize lawyer to take some action on client’s behalf w/o consultation.
iii. C4: If client is suffering from diminished capacity, lawyer’s duty to abide by client’s decisions is guided by Rule 1.14.
iv. C9: there is a critical distinction between presenting analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud is committed.
v. C10: If the lawyer discovers he is assisting a client in a crime he must withdraw. Rule 1.16(a)
Rule 1.3: Diligence – a lawyer shall act w/ reasonable diligence and promptness in representing a client.
C1: lawyer must pursue a matter for a client despite opposition and personal inconvenience. Must act with zeal in advocacy of the client. This does not preclude a lawyer from treating all people involved with courtesy and respect.
C2: Lawyer’s workload must be controlled.
C3: A lawyer should prevent unreasonable delay b/c it undermines client’s confidence.
C4: A lawyer should carry through to conclusion all matters undertaken for client, unless the relationship is terminated per Rule 1.16. Lawyer’s employment terminates when the matter has been resolved.
C5: To prevent neglect, a lawyer may need to prepare a plan designating another competent lawyer if he dies.
Rule 1.4: Communication- a lawyer shall 1) promptly inform the client of matters in which his informed consent is required, 2) reasonably consult the client about the means used to obtain the client’s objectives, 3) keep the client reasonably informed about the status of the matter, 4) promptly comply w/ reasonable requests for info. Rule 1.4(a). A lawyer shall explain the matter to the extent reasonably necessary for the client to make an informed decision. Rule 1.4(b).
C2: if a lawyer gets a settlement offer or a plea bargain he must promptly inform client.
C4: if a prompt response is not feasible (a)(4), lawyer should acknowledge receipt of request and let client know when a response will be coming.
C5: negotiation – if possible, a lawyer should review all provisions w/ client. Litigation – lawyer should explain general strategy and consult on tactics. Trial/negotiation – lawyer does not have to describe entire strategy in detail.
C6: if client is a group – it is impossible to inform every member. Lawyer should inform appropriate officials of the organization. (Rule 1.13.
C7: a lawyer may delay transmission of info if the client is likely to react imprudently. A lawyer may not withhold information to serve the lawyer’s own interest.
Rule 1.5: Fees – a lawyer cannot charge unreasonable fees. Factors considered include 1) time and labor required, 2) opportunity cost to lawyer, 3) fee typical in locality for similar services, 4) results obtained, 5) time limitations imposed by circumstances, 6) length of relationship w/ client (longer relationships are more likely to have established fees C:2), 7) experience, reputation of lawyer, 8) if fee is fixed or contingency. Rule 1.5(a).
Changes in fees: should be communicated to client. Rule 1.5(b).
Contingent fees: must be in writing and signed by client. It must clearly define any expenses the client is responsible for. Rule 1.5(c).
i. Prohibited for: continency fees in domestic relations and criminal cases. Rule 1.5(d).
Splitting fees: b/w lawyers not in the same firm can only be made if division is proportional to services performed, the client agrees to the arrangement in writing, and fee is reasonable. Rule 1.5(e).
i. C4: advance payment of fees is allowed, but lawyer must return any unearned portion. A lawyer may receive property as a fee as long as it is not interest in the subject matter of litigation R
or others under his supervision. Rule 1.1 – competence, 5.1 – supervising lawyers, 5.3 – nonlawyer assistants
xi. C17: lawyer must take reasonable precautions to prevent info from going to unintended recipients. Factors for reasonableness include 1) sensitivity of information, 2) if there is a confidentiality agreement.
xii. C18: confidentiality continues after C/L relationship is over. Rule 1.9(c)(2).
xiii. MR 4.4 – Inadvertent Disclosure – the client may lose the privilege of confidentiality by inadvertently disclosing otherwise privileged communications to non-privileged recipients. Moreover, if a client voluntarily reveals a portion of his privileged communications, courts typically find that he may not withhold the remainder. If a document relating to the representation of the lawyer’s client was inadvertently sent to the lawyer, he must promptly notify the sender. MR 4.4(b).
Rule 1.7: Conflict of Interest: Current Clients – a lawyer can’t represent a client if there is a concurrent conflict of interest which occurs if 1) representation would be directly adverse to another client, 2) there is significant risk the representation will be materially limited by lawyer’s responsibilities to another. Rule 1.7(a). However, a lawyer can represent a client even if there is a conflict if 1) he reasonably believes he can provide competent and diligent representation, 2) the representation is not prohibited by law, 3) it is not client 1 vs. client 2, AND 4) each client gives informed consent, confirmed in writing. Rule 1.7(b).
C1: Rule 1.8 deals with specific concurrent conflicts. Rule 1.9 deals w/ former client conflicts. Rule 1.18 deals w/ prospective clients.
C2: Resolution of conflict requires lawyer to: 1) clearly identify the clients, 2) determine if a conflict exists, 3) decide whether representation can still be made, 4) if so, consult the clients to get informed consent.
C4: if conflict arises after representation is undertaken, lawyer ordinarily must withdraw. A lawyer may, potentially, still represent one of the clients.
C6: competing firms are not typically considered adverse, and therefore probably are not a conflict.
C10: lawyer’s personal interests cannot be adverse to a client. Rule 1.8 describes some of the personal interests, such as business transactions. Rule 1.10 says that personal interest conflicts under Rule 1.7 typically are not imputed to other lawyers in the firm.