NevilleEwell_PR_Spring2011
RULE 1.1: Competence:
RULE: The measure is whether or not you have the knowledge, skill, thoroughness, and preparation reasonably necessary(KSTP) to provide competent representation.
No Experience Necessary
Standard is general practioner, unless expertise is required.
RULE 1.2: Scope of Duty:
You shall abide by a client’s objectives whenever possible and consult with a client as to how to achieve those objectives. (see 1.4)
You must abide by a client’s decisions in a criminal case.
The fact that you represent someone is not the equivalent of an endorsement of the client’s beliefs, views or activities.
You may limit the scope of the representation if to do so is:
(a) reasonable under the circumstances; and,
(b) the client has given informed consent.
You shall not counsel a client to engage, or assist a client in conduct you know to be criminal or fraudulent.
There are two kinds of improper assistance:
(a) Actively involved in what they are doing – Active Assistance:
(b) Sitting by and saying nothing – Inactive Assistance:
RULE 1.3: Duty to Represent Client with Diligence (Do you have the time?):
RULE: A lawyer shall act with reasonable diligence and promptness in representing a client.
Look at how many cases you already have.
RULE 1.4: Communication:
You mustpromptly obtain anyrequired informed consents.
You mustreasonably consult with the client about theclient’s objectives and how to fulfill them.
You must keep the client reasonably informed about the status of the client’s matter – regular communication.
4. You must promptly comply with reasonable requests for information.
5. You mustexplain a matter to the extent reasonably necessary for the clientto make informed decisions regarding the representation.
RULE 1.5: Fees: TLFATNEW
(a) Fees MUST be reasonable. The factors for reasonableness:
1. time and labor required; novelty and difficulty of questions and skill.
2. likelihood that acceptance willpreclude other employment.
3. Fee customarily charged in the locality.
4. amount involved and results obtained.
5. time limitations imposed by the client or the circumstances.
6. nature and length of professional relationship.
7. experience, reputation and ability of the lawyer;
8. whether the fee is fixed or contingent
(b) In all new client situations: (disclosure)
1. The scope of the representation; and,
2. The basis or rate of the fee (along with the expenses for which the client will be responsible);
3. Shall be communicated to the client (preferably in writing).
Returning Clients:
charging same rate no need to communicate
However, if you have changed your fees, you need to sit down and have a meeting of the minds with your client.
(c) Contingent Fees:
An agreement for a contingent fee must be:
1. In writing, and
2. Signed by the client.
The agreement must set forth:
The method for determining the fee, including the percentage of recovery that will go to the lawyer as the fee; and,
Provisions for the treatment of expenses.
(d) prohibited in certain kinds of cases:
Divorce
Criminal Matters:.
(e) Splitting Fees With Other Lawyers:
You may only share fees with a lawyer not in your firm IF:
1. The split is in proportion to the services performed by each lawyer;
2. The client has given consent to the split; and,
3. The total fee is reasonable.
Referral fees are NOT allowed.
The provide the poor with access to justice
They provide incentive to lawyers to achieve a good result for the client
They encourage speedy resolution of litigation
Lawyer’s Personal Interest MAY NOT interfere:
You may not allow your personal interest in the contingent fee to interfere with your professional judgment on behalf of the client. Rules 1.7 and 1.8.
Earned Upon Receipt Fees (go right into your account and not the trust fund):
Minimum Fees:
A minimum amount that the matter will cost the client
A minimum fee is billed against an hourly rate
Engagement Fees:
A fee paid for the sole purpose of securing your services
No time is billed against it. It is earned upon receipt for just having you as a lawyer. (retainer fees are a 1.15 problem).
Non-Refundable Fees:
Really no such thing because if you don’t work, you don’t get to keep the money.
If you are discharged half way through, you work off of quantum meruit.
The only time you can keep it is if you’ve done 95% or more of the work.
RULE 1.6: Confidentiality of Information:
(a) A lawyer cannot reveal information related to the representation of a client regardless of the source (very broad) UNLESS:
1. the client gives informed consent;
2. the disclosure is impliedly authorized; or
Exists when disclosure of confidential information is appropriate in carrying out the representation.
3. the disclosure is permitted by paragraph (b).
(b) Exceptions (where you may reveal info regarding representation to the extent reasonably believed necessary):
(b)(1) To prevent reasonably certain death or substantial bodily harm
: Current Clients: ***
No man can equally serve two masters
These rules are designed to preserve loyalty and confidentiality.
When referring to these rules, mention 1.6.
Rule 1.7(a):
Except as provided in paragraph (b), a lawyer SHALL NOT represent a client if the representation involves a conflict.
What is a concurrent conflict?
A concurrent conflict exists where:
1. The representation of one client will be directly adverse to (against) another client (matters do not have to be related); or
2. There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsiblities to another client, a former client, a third person or by a personal interest of the lawyer.
Whenever there is a conflict, you CANNOT take the case (unless you can satisfy ALL of 1.7[b]).
Rule 1.7(b):
If a conflict is present either under 1.7(a)(1) or (2), in order to determine whether the representation is permissible, a 1.7(b) analysis is required.
The 1.7(b) Analysis:
The 1.7(b) analysis decides whether the 1.7(a) conflict can be remedied by client consent; OR
Whether the conflict is so direct and intense, that regardless of client consent, the representation would be impermissible.
Introduction to the 1.7(b) Test:
The 1.7(b) test has four prongs and all four prongs must be satisfied in order that the representation be permissible.
Where just one prong cannot be satisfied, the 1.7(a) conflict is impermissible and it would be unethical for the lawyer to proceed on behalf of the competing interests.
The Four Prongs of 1.7(b) – you must have ALL of them:
1. It must be reasonable to conclude that the lawyer can represent both clients competently and diligently (with equal loyalty);
2. The representation must not be prohibited by law;
Do not analyze this prong on a test; just assume it is legal.
3. The representation cannot involve both sides of a claim in the same case; and,
You cannot represent both a plaintiff and a defendant in the same case.
