PROFESSIONAL RESPONSIBILITY VULETICH SUMMER 2012
CLIENT-LAWYER RELATIONSHIP
1.1 – Competence
Standard: The required proficiency is usually that of a general practitioner although expertise in a particular area of law may be required in some circumstances (patent work)
· Competence does not require experience
Lawyer is required to provide competent representation. This requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
· Factors:
o Complexity and specialized nature of the matter
o Experience
o Must have the time/resources necessary to represent
· Ok to seek help from another lawyer to meet these requirements
Martinelli
· Attorney failed to file a document before the SOL ran because his computer failed and didn’t remind him of the deadline.
· He tried to say that his good cause for untimely filing was the fact that his computer failed
· Judge said a computer failure isn’t good cause because a reasonable person should expect a computer to fail and should take necessary steps to ensure info is backed up
· He violated 1.1 by not having the preparation reasonably necessary for representation
Harris
· Bankruptcy attorney failed to comply with the e-filing standard and kept trying to submit a paper form
o Also misinformed his client by telling him he was “getting the username/password,” but he never made any attempt to do so
· You have a duty to your client to be technologically proficient.
Difference between Malpractice (tort claim) and Discipline
· The MRPC provide that “a violation of a rule should not give rise to a cause of action (in tort), nor should it create any legal presumption that a legal duty has been breached.”
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1.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer
(a) Lawyer is required to abide by the client’s decisions regarding objectives of representation
· Only allowed to take action on behalf of client when you’re authorized implicitly
· Criminal Cases: 100% client’s decision regarding entering a plea, whether to waive a jury trial and whether client will testify
(c) OK to limit scope of representation if reasonable under circumstances and client gives informed consent
(d) KNOW THIS BY HEART:
· A lawyer can’t advise a client to engage in, or assist him in engaging in, conduct that the lawyer knows is criminal or fraudulent
· OK for a lawyer to discuss the legal consequences of any proposed course of conduct with a client or help them determine the application of law
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1.3 – Diligence
Lawyer must act with diligence and promptness in representing a client
· Required to pursue a matter on behalf of client despite opposition, obstruction, or personal inconvenience to the lawyer. Also have to act with commitment and dedication (see Rompilla).
· Control your workload
· Don’t procrastinate
· Make sure your client knows when the representation ends
Rompilla
· Attorney failed to discover an easily accessible file that could have mitigated his client’s chance of being sentenced to death
· But, the client was sending the attorneys on false-leads and at one point in time he left a meeting
· Still, since the prosecutor had to tell the attorney about the easily-accessible file, the attorney violated 1.3
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1.4 – Communication
(a) Lawyer is required to:
· 1. Promptly inform client of any decision with respect to the client’s informed consent (as defined in 1.0)
· 2. Consult with client about how client’s objectives are to be accomplished
action and the agreement contained a “Premium Fee” clause
· This allowed for an additional fee and is what is disputed
· Defendant won her case and the “Premium Fee” bonus amounted to $150,000, payable upon 3 installments.
· She paid one payment and then realized the bonus was unreasonable and stopped payment.
· The Firm sued to collect the remaining $100,000
· Rule:
o “Any clause providing for a [bonus fee] must be defined in plain language an set forth the circumstances under which such fee may be incurred and how it will be calculated
· Analysis:
o The bonus fee clause merely reserves the Law Firm’s right to have a future discussion with defendant about payment of the fee.
o There was no explanation of how this would be calculated
o Fails to provide the circumstances under which the premium fee “may be incurred”
o Because of this it fails to meet the plain language requirement
Green
· Green was hired to represent a tile contractor in a breach of contract dispute.
· The K provided that the loser of the trial must pay attorney fees.
· Green and his client agreed that if the client prevailed, then Green would accept his fee as whatever the court awarded, otherwise the client would owe Green nothing.
· Green won the case and was ordered to calculate his attorney fees which ended up being $30,000 ($165/hour x 180 hours)
· Judge ruled this was a excessive because he billed for things that his secretary could have done.
· He awarded Green $12,000 in fees.
