PROFESSIONAL RESPONSIBILITY
KERSHEN
FALL 2011
I. Duties of the Lawyer to the Client w/in the Client-Lawyer relationship
A. Lawyer's fiduciary duty to the Client. OKrPC 1.1, 1.2, 1.3, 1.4.
1. A lawyer has a fiduciary duty to the client to act in the client's best interest by providing competent and loyal representation.
2. The lawyer must obtain informed consent from the client about any decision or circumstance where informed consent is required before the lawyer may act. [OKrPC 1.4(a)(1), communication].
“Informed consent”: an agreement by the client to the lawyer's proposed course of conduct after the lawyer informed and explained about the material risks and reasonably available alternatives to the proposed course of conduct.
Must get informed consent before the lawyer acts when: lawyer receives an offer of settlement (civil) or plea bargain (crim) from the opposing side, the representation involves a conflict of interest, the lawyer engages in a biz transaction w/ the client, the lawyer acquires a pecuniary interest adverse to the client's interests,
Exceptions, where lawyer is not required to get informed consent: (1) prior discussions w/ client resolved what actions client wants lawyer to take, (2) exigency, like in a trial, (3) where the client is likely to react imprudently.
A lawyer may not withhold info to serve his own interest, or interests of third persons.
A lawyer must communicate with the client about any matters requiring the client's informed consent, the ongoing status of the representation, the lawyer's general strategy and likeliness of success.
3. A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge and skill, thoroughness, and preparation reasonably necessary for the representation. [OKrPC 1.1, Competence].
Whether a lawyer employed the requisite knowledge and skill depends on (1) the complexity and specialized nature of the case, (2) the lawyer's general experience, (3) the lawyer's training and experience in the field in question, (4) the preparation and study the lawyer is able to give, and (5) whether it is feasible to refer the matter to or consult with a lawyer of established competence w/in the field in question. [OKrPC 1.1, comment 1].
The level of thoroughness and preparation required depends on what is at stake in the representation. An agreement may be made to limit the lawyer's representation, OKrPC 1.2(c).
B. Taking on a new case.
1. It is ethical for a lawyer to take a case with which he is unfamiliar with the subject matter, because the lawyer can provide competent representation in a novel area of law by studying it, consulting with a lawyer who has established competence in the field, or using the skills needed to address all legal problems – determining what kind of legal problems are involved in a situation, analyzing precedent, evaluating evidence, and legal drafting. [OKrPC 1.1, comment 2].
A lawyer is not required by OKrPC to refer an unfamiliar matter to a more experienced attorney.
But the lawyer must explain to the client about the lawyer's own limited knowledge about a subject matter in order to allow the client to make an informed decision about the representation, i.e. who his lawyer should be. 1.4(b), communication. He must also inform and explain about setting reasonable fees for the services based on the complexity of the subject matter.
2. In an emergency where referral or consultation is impractical, a lawyer may give advice or assistance on a matter in which he does not have the skill ordinarily required.
But even in an emergency, the lawyer's conduct must be limited to that reasonably necessary in the circumstances and must not jeopardize the client's interests.
3. A lawyer has a duty to represent a client if the lawyer is appointed by a tribunal, or if the client is a person of limited means or a charitable group.
Pro Bono Legal Serives: OKrPC states a lawyer must perform public interest legal service at no fee or a reduced fee to “a person of limited means or charitable groups,” or give financial support to organizations that provide legal services to persons of limited means. [OKrPC 6.1].
Not intended to be enforced through disciplinary proceedings.
ABA language: lawyer is urged do average of 50 hrs pro bono each year for his career, most of it to persons of limited means or charitable organizations in matters designed to address such needs.
A lawyer may not avoid appointment by a tribunal to represent a person except for good cause, such as (1) representation is likely to result in a violation of RPC or other law (causes a CoI b/c client or cause is so repugnant as to impair the representation, or if lawyer cannot handle the matter competently). [OKrPC 6.2].
A lawyer fu
sponsibility”: lawyer must assume financial and ethical responsibility for the representation as if the lawyers are partners.
3. Referrals must be to a lawyer whom the referring lawyer believes is reasonably competent to handle the matter.
A competent lawyer exercises the requisite legal knowledge and skill, thoroughness, and preparation necessary for the representation.
D. Fee Arrangement and Financial Transactions w/ the Client. OKrPC 1.5, 1.8
1. A lawyer must not charge a client for an unreasonable amount for expenses. Whether a fee is reasonable depends on various factors:
The time & labor required, novelty & difficulty of the question, requisite skill needed to perform the legal service properly
The fee customarily charged in the locality for similar services
The amount involved and the results obtained
The nature and length of the relationship w/ the client
Reputation & experience of the lawyers
Whether the fee is fixed, or contingent on the outcome
2. A lawyer shall not charge or collect a fee in a domestric relations matter where the payment is conintgent upon securing a divorce, or upon the amount of alimony, or property settlement. A lawyer shall not charge a contingent fee for representing a defendant in a criminal case.
3. It is ethical for a lawyer to charge a contingency fee if it is not prohibited by OKrPC, and also is limited by the applicable law.
4. It is ethical for a lawyer to collect a division of fees. See above OKrPC 1.5(e) requirements (proportional work/joint responsibility, informed consent, reasonableness of total fees).
5. It is ethical for a lawyer to enter into a business transaction with a client, or knowingly acquire a pecuniary interest adverse to a client, IF:
The transaction and terms are fair & reasonable to the client, and are disclosed in writing;
The client is told and is given a reasonable opp. to seek independent legal advice (in writing);
