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Professional Responsibility
West Virginia University School of Law
Fershee, Kendra Huard

 
Professional Responsibility Outline
Professor K. Fershee
Fall Semester – 2014
 
CLIENT-LAWYER RELATIONSHIP
 
·         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.
·         RULE 1.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer
o   (a) Subject to paragraphs (c) and (d), a lawyer SHALL abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, SHALL consult with the client as to the means by which they are to be pursued. A lawyer MAY take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer SHALL abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer SHALL abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
o   (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.
o   (c) A lawyer MAY limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
o   (d) A lawyer SHALL NOT counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.
·         RULE 1.3 – Diligence
o   A lawyer SHALL act with reasonable diligence and promptness in representing a client.
·         RULE 1.4 – Communication
o   (a) A lawyer SHALL:
§  (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
§  (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
§  (3) keep the client reasonable informed about the status of the matter;
§  (4) promptly comply with reasonable requests for information; AND
§  (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules or other law.
o   (b) A lawyer SHALL explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
·         RULE 1.5 – Fees
o   (a) A lawyer SHALL NOT make an arrangement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
§  (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
§  (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
§  (3) the fee customarily charged in the locality for similar legal services;
§  (4) the amount involved and the results obtained;
§  (5) the time limitations imposed by the client or by the circumstances;
§  (6) the nature and length of the professional relationship with the client;
§  (7) the experience, reputation, and ability of the lawyer or lawyers performing services; AND
§  (8) whether the fee is fixed or contingent.
o   (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible SHALL be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses SHALL also be communicated to the client.
o   (c) A fee MAY be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement SHALL be in writing, signed by the client, and SHALL state the method by which the fee is to be determined, including the percentage or percentages that will accrue to the lawyer in the event of settlement, trial, or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement MUST clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer SHALL provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
o   (d) A lawyer SHALL NOT enter into an arrangement for, charge, or collect:
§  (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; OR
§  (2) a contingent fee for representing a defendant in a criminal case.
o   (e) A division of fee between lawyers who are not in the same firm MAY be made only if:
§  (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
§  (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; AND
§  (3) the total fee is reasonable.
·         RULE 1.6 – Confidentiality of Information
o   (a) A lawyer SHALL NOT reveal information relating to the representation of a 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 paragraph (b).
o   (b) A lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
§  (1) to prevent reasonably certain death or substantial bodily harm;
§  (2) the prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
§  (3) 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;
§  (4) to secure legal advice about the lawyer’s compliance with these Rules;
§  (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
§  (6) to comply with other law or a court order; OR
§  (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
o   (c) A lawyer SHALL make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
·         RULE 1.7 – Conflict of Interest: 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 or 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 – Conflict of Interest: Current Clients: Specific 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 counsel 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.
o   (c) A lawyer SHALL NOT solicit any substantial gift from a client, including a testamentary gift, or prepare on b

t currently represented by the firm, unless:
§  (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; AND
§  (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
o   (c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
o   (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
·         RULE 1.11: Special Conflicts of Interest for Former And Current Government Officers and Employees
o   (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
§  (1) is subject to Rule 1.9(c); AND
§  (2) SHALL NOT otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
o   (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
§  (1) the disqualified lawyer is timely screened from any participation in the matter and is appointed no part of the fee therefrom; AND
§  (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
o   (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, MAY NOT represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated MAY undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
o   (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
§  (1) is subject to Rules 1.7 and 1.9; AND
§  (2) SHALL NOT:
·         (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; OR
·         (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
·         RULE 1.12 – Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
o   (a) Except as stated in paragraph (d), a lawyer SHALL NOT represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediatory, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
o   (b) A lawyer SHALL NOT negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer MAY negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.