Select Page

Legal Profession
University of Denver School of Law
Vigil, Daniel A.

 
LEGAL PROFESSION
DANIEL VIGIL
SPRING 2014



I.                   SOURCES & APPLICATION OF LEGAL ETHICS RULES
a.      Becoming a Lawyer 8.1:
i.      Applicants for admission of bar and lawyers in connection w/admission application/disciplinary matter, must not knowingly make a false stmnt of material fact, fail to disclose a fact necessary to correct a misapprehension, or knowingly fail to respond to a lawful demand for non-confidential info
1.      Applies to non-lawyers as well.
ii.      Subject to fifth amendment, states may require more disclosure from applicants for a law license than employers may require in a job application.
1.      Under penalty of perjury
2.      Often contain questions not constitutional in other jobs like chemical dependency and mental illness, arrests not leading to convictions, and whether party to a lawsuit.
iii.      Cmnt 3: lawyer writing letter of rec fro bar candidate or asked about info is subject to same rule
1.      1.6(b) However, lawyer knowing derogatory info about bar candidate can’t disclose that info if it is confidential under 1.6
iv.      Violating 8.1 can result in suspension or revocation of license as well as denial or voidance of admission
v.      Requires correction of any prior misstatement that bar candidate has made and clarification of misunderstanding
II.                BEGINNING & ENDING THE LAWYER-CLIENT RELATIONSHIP
a.      1.16 Terminating a Client-Lawyer Relationship:
i.      In General:
1.      Cmnt 1: lawyer’s rep of client ordinarily continues after completion of the matter
2.      2 types of premature termination of the relationship: mandatory or optional withdrawal
3.      (c)Even if good cause to terminate representation, the lawyer may have to continue representing a client if ordered to do so by court.
4.      (d): upon terminating rep, lawyer must take steps to protect the client’s interests:
a.      Lawyer must give client reasonable notice and time to retain other counsel
b.      Lawyer must also return client papers and any unearned portion of prepaid fees
i.      However, lawyer may retain papers as security for a fee only to the extent permitted by law.
b.      1.6 Duty of confidentiality continues after withdrawal
i.      Mandatory Withdrawal
ii.      (a): when the representation will result in violation of law or Rules;
1.      Commonly occurs when client insists upon the lawyer’s participation in course of fraudulent conduct
a.       Cmnt. 2: Client’s mere suggestion of fraudulent conduct is not sufficient grounds for mandatory withdrawal b/c lawyer may be able to explain the ethical violation and dissuade client from suggest course conduct.
2.      Lawyer’s physical or mental condition materially impairs his ability to represent the client; or
a.       Includes problem with drugs, alcohol, or depression
3.      Lawyer is discharged.
a.       Atty-client relationship terminable at will by client, with or without cause, subject to liability for payment for services
b.      IF breach of K, atty entitled to recover damages
4.      (Cmnt. 5) If client discharges appointed counsel, appointing authority may decide that a successor appointment is unjustified, leaving client to rep himself. Client should be warned of this potential consequence before appointed counsel is discharged.
iii.      Optional Withdrawal:
1.      (b) Lawyer may withdraw from rep if
a.       withdrawal can be accomplished w/out materially adverse effect on client
b.      Client persists in course of action involving lawyer’s services that lawyer reasonably believes are criminal or fraudulent
i.      Diff. when lawyer furthers his client’s crime fraud= mandatory
2.      Client used lawyer’s services to perpetuate crime/fraud
3.      Client insists upon taking action that lawyer considers repugnant or with which lawyer fundamentally disagrees
4.      Client fails substantially to fulfill obligation to lawyer regarding lawyer’s services (ex. Fee) and has been given reasonable warning that lawyer will withdraw unless obligation fulfilled
5.      Representation will result in an unreasonable financial burden on lawyer or has been rendered unreasonably difficult by client; or
a.       Client’s refusal to accept lawyer’s advice on Q’s, such as whether to testify or whether a settlement should be accepted= not sufficient ground for withdrawal
b.      However, client’s refusal to accept advice coupled w/threats and accusations against lawyer may render representation “unreasonably difficult”
6.      Other good cause for withdrawal exists.
iv.      Declining/Terminating Rep:
1.      Lawyer shouldn’t accept representation in matter unless it can be performed competently, promptly, and without improper conflict of interest
2.      (a) Lawyer may not represent client if:
a.       Would violate Rules or law
b.      Lawyer’s physical or mental condition would materially impair lawyer’s ability to represent client
c.       6.1 Voluntary Pro Bono Work:
i.      Every lawyer has professional responsibility to provide legal services to those unable to pay
ii.      Lawyer should aspire to render at least 50 hours of pro bono. Strongly recommended
1.      Each state can choose higher or lower numbers depending on needs
iii.      Substantial portion of 50 hours should be provided w/out fee or expectation of fee
iv.      Add’l legal services should be provided by
1.      Substantially reduced fee to individuals and orgs
2.      Persons of limited means
3.      Participation in activities improving the law, legal system, or legal profession
v.      Lawyers may aggregate to satisfy requirements collectively (firm can assign one lawyer to full time pro bono)
vi.      No enforcement through disciplinary process
d.      6.2 Accepting appointments by Court:
i.      Where lawyer appointed, he should accept except for good cause such as:
1.      Representing likely to result in violation of Rules or Law
2.      Likely to result in unreasonable financial burden on lawyer; or
3.      Client or cause is so repugnant to lawyer as to be likely to impair the client-lawyer relationship or lawyer’s ability to represent the client
ii.      Appointed lawyer has same obligations to client as retained counsel









III.             ADVERTISING & SOLICITING (7.1-7.5)
a.      Solicitation:
i.      Rule 7.3
1.      Solicitation is targeting communication initiated by the lawyer that is directed to a specific person and offers to provide legal services (comment 1)
a.      Focus is on personal contact- diff. than advertising
b.      30 day rule (many states) prohibiting direct mail to victims of accident/disaster
2.      7.3(a): cannot solicit in person, live telephone or real-time electronic if reason for pecuniary gain
a.       unless person solicited is a lawyer or has family, close personal or prior prof. relationship with lawyer
b.      Can approach those in need of legal service to suggest they obtain a lawyer. Also may solicit former clients for additional legal services.
c.       Can solicit business from other lawyer (cmt. 5)
3.      7.3(b): cannot solicit from anyone who has made known they don’t want to be solicited. No coercion, duress, or harassment. Electronic real-time comm. Are the same as live phone calls.
4.      7.3(c): Advertising circulars sent in mail targeted to those known to be in need of particular legal services allowed. Must be marked “Advertising Material.”
5.      7.3(d): Lawyer may contact representatives of orgs or groups interested in est. a prepaid legal services, etc. As long as:
a.       lawyer not personally involved in solicitation
b.      org. is not owned or directed by lawyer
c.       persons solicited are not known to be in need of legal services in a particular matter.
b.      Advertising:
i.      Communication of info about availability of lawyer’s services that does not personally target any specific individual
ii.      7.2(a)
1.      Advertising permitted, as long as the communication is not misleading and follows 7.1
2.      Can advertise through: written, recorded, electronic media (including public media)(a)

rmed (or lawyer assumes joint responsibility)
b.      client agrees in writing
c.       total fee is reasonable
i.      or it facilitates association of more than one lawyer in matter in which neither alone could serve client (cmnt. 7). Usually w/referral lawyer & trial specialist. Jointly responsible as if there was a partnership.
7.      (Cmnt. 1) Can collect reimbursement for costs of services/expenses (copying/telephone charges)
a.       When earlier estimate is inaccurate, revised estimate should be provided to client
8.      (Cmnt. 5): lawyer shouldn’t enter into agreement when foreseeable that more extensive services are likely required (unless adequately explaining situation to client).
a.       Lawyer shouldn’t establish fee arrangement that may put client at disadvantage if circumstances change during representation
9.      (Cmnt. 9): in event of fee dispute, lawyer should consider submitting to mediation or est. fee arbitration service.
10.  Technically not allowed to charge for same hours (airplane hypo).
ii.      1.8(e) Advancing Court Costs
1.      (1): lawyer can advance court costs/other expenses of litigation, repayment may be contingent on outcome
a.       under this arrangement, if client loses, lawyer absorbs costs & expenses
2.      (2): indigent client: lawyer may pay costs of outcome
iii.      1.15: Safekeeping Client Funds & Property
1.      (a) Lawyer must hold funds & prop. of clients/3rd persons separate from his own
a.       Complete records of all account funds/property must be kept for 5 years after rep.
2.      (b) However, lawyer may deposit own funds into client trust account, but only up to amount necessary to pay bank service charges
3.      (c): Must deposit into client trust all prepaid legal fees/expenses paid in advance. May withdraw only the fees earned or expenses incurred.
a.       No duty to place client funds in interest-bearing account, but if client earns interest, lawyer can’t retain amount earned in interest w/out client’s informed consent
i.      If funds held in trust, fiduciary mgmt. principles apply:
1.      Trust funds are to be kept for very short time, then funds may be placed in non-interest bearing account
2.      If for longer period, then funds should be placed in interest bearing account w/client receiving the interest.
4.      (d): upon receiving funds or other prop in which client/3rd party has interest, lawyer must promptly notify that person
a.       must promptly deliver to client/3rd person any funds or prop they are entitle to receive. Upon request, must render full accounting regarding such prop.
b.      Lawyer must safeguard & account for client prop. not in cash
i.      Must be kept safe
ii.      Securities should be in safe-deposit box
5.      (e): When 2 or more persons (one may be the lawyer) claim interest in client’s prop., lawyer must keep it separate until dispute is resolved
a.       lawyer must promptly distribute all portions of prop. not in dispute.
6.      (Cmnt. 4): lawyer owes duty to client AND 3rd parties w/legit interests (such as client’s creditor who has lien on funds recovered). Must protect against wrongful interference by client & can’t disperse money to client unless sufficient funds remain to satisfy claim. Must refuse to disperse until it is resolved.