Professional Responsibility
Vestrand
Summer 2016
1.0: TERMINOLOGY
(E) in order to qualify as an informed consent, each affected client must be made aware of:
the relevant circumstances and of
the material and reasonably foreseeable ways that the conflict could have adverse affects on the interests of the client
must be signed by client OR signed by lawyer following oral consent and promptly transmitted to the client in conformation of the consent
1.1: Competence
Rule: A lawyer shall provide competent representation to a client
Test: Does the lawyer have the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation? (KSTP)
No experience is necessary
Always look: if attorney is neglecting a case 1.1 always applies
Cant equally represent 2 masters
Absolute loyalty is impossible absent conflict-free representation
1.2: Scope of Representation (also look at: 3.3 and 3.4)
(A) Shall abide by client’s objective whenever possible AND must abide by client’s decisions in criminal case
(B) The fact that you represent someone is not an endorsement of the client’s beliefs, views, or activities
(C) May limit the scope of representation only if to do so is:
Reasonable under the circumstances AND
The client has been given informed consent
(D) You shall not counsel a client to engage, or assist a client in conduct you know to be criminal or fraudulent
1.3: Diligence
Rule: A lawyer shall act with reasonable diligence (careful and persistent work effort) and promptness in representing a client
Commitment: a lawyer’s work should be controlled so that each matter can be handled adequately
1.4: Communication
(Consult, respond, obtain consent, inform)
Must promptly obtain any required informed consents
Must reasonably consult with the client about the client’s objectives and how to fulfill them
Must keep them reasonably informed about the status of the client’s matter
Must promptly comply with reasonable requires for information
Must promptly consult with the client regarding any limitation on your conduct when the client expects assistance not permitted within the rules
You must explain a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation
1.5: Fees
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount of expenses
Factors for reasonableness
Time and labor required/novelty and difficulty of the matter/skill required
Likelihood that acceptance of the matter will preclude employment
Customary fee for the services in that particular legal community
Amount involved and results obtained
Any time limitations imposed by the client or the circumstances
Nature and length of the professional relationship with the client
Experience and reputation of the lawyer
Fixed or contingent fee
(B): In all new client situations, the client and attorney must agree to:
The scope of representation AND
The basis of rate fee (along with the expenses for which the client will be responsible)
Shall be communicated to the client
Preferably in writing
Before or within a reasonable time of commencing the representation
(C) contingency Fee requirements:
In writing
Signed by client
Must set forth the method by which the fee will be determined
Includes: how the percentage and how expenses will be treated
The fee must be reasonable
Contingent fees are prohibited in certain kinds of cases
Divorce (pre-judgment)
Criminal matters
Must advise the client of alternative fee arrangements; can’t impose contingency fee on client who desires a different arrangement
(E): You may only share fees with a lawyer not in your firm if:
The split is in proportion to the services performed by each lawyer
The client has given consent to the split AND
The total fee is reasonable
Engagement fee: paid to you simply for the client having the privilege of having you as their lawyer
Notes:
Writing is not required but not recommended
Exception: must have written fee agreement for contingency agreements
Elements of a good fee agreement
In writing
Terms are clear and concise
Language is plain English (no legalese)
No unethical/illegal terms
Unethical/illegal provision:
Usurious interest rate on overdue fees
Max =7% – writing/ 5% – oral/ 0% – never discussed
Impermissible conflict waivers
Cant waiver right to grievance or malpractice
Impermissible liability waivers – civil and disciplinary
Cant waive right comingle our property and clients
Client can’t go against ABA laws not up to them
Impermissible waiver of requirement to keep client property separate
Liens: two types a lawyer may use to secure a fee
Charging a lien into the future
Mechanics lien
E.g.: Hold car until you pay for your services – if a client wont pay then can hold onto something until they pay EXCEPT for records
Whether or not been paid, can never retain files of the client
Examples:
es: any such disclosures only appropriate in connection with substantive, serious discussions of affiliation (only reveal what you have to)
Disclosure must be limited:
ID of persons/entities involved
Summary of general issues
Whether the matter is still ongoing
(C): a lawyer must make reasonable efforts
to prevent the inadvertent or unauthorized disclosure of
or unauthorized access to
information relating to the representation of a client
E.g.:
Cant be careless with files
Leaving voicemail not knowing who can have access to confidential info in voicemail
Notes:
A client who seeks to use your services to commit a crime or fraud forfeits the protection of attorney – client confidentiality
The duty of confidentiality survives the termination of A/C relationship and the death of former client
Exists forever unless have informed consent or exception under B (implied authority no longer relevant since died)
1.7: CONFLICT OF INTEREST: Current Clients
(Always look for compromised loyalty = conflict)
(Third parties, ANOTHER CLIENT) – if doesn’t fit under 1.8 can use for personal interest
First thing: do I have a concurrent conflict??
(A): except as provided in (B), a lawyer shall not represent a client if the representation involves a concurrent conflict
1-Directly adverse: the representation of one client will be directly adverse to another client
2-Even in the absence of direct adverseness, a conflict also exists
If there is a significant risk that a lawyer’s ability to represent a client will be materially limited by the lawyer’s other responsibilities or interest
If a concurrent conflict is present either under 1.7A1 or 2, in order to determine whether the concurrent representation is permissible, rule 1.7b is required
B analysis decides whether the 1.7a conflict can be remedied by client consent or whether the conflict is doing direct and intense that regardless of client consent, the concurrent representation would be impermissible
