Professional Responsibility Outline

ABA MODEL RULES
 
Client-Lawyer Relationship
1.1 Competence
Rule: A lawyer shall provide competent representation to a client.
Test: A lawyer is competent if the lawyer has the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Keep – knowledge
Soft   – skill
Toilet – thoroughness
Paper – preparation
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
Competency doesn’t require experience
 
1.2 Scope of Representation
Rule – You shall abide by a client’s objectives whenever possible and consult with a client as to how to achieve those objectives. 
You must abide by a client’s decisions in a criminal case.
1.2(b) – The fact that you represent someone is not the equivalent of an endorsement of the client’s beliefs, views or activities.
1.2(c) – 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.
*1.2(d) – You shall not counsel a client to engage, or assist a client in conduct you know to be criminal or fraudulent. (see also 3.3 and 3.4, cluster of rules, if have one prob have other)
1 – Active Assistance (in crime or fraud) – E.g. atty supplied knife to client in jail, client found w/ knife and map in jail w/ plan to escape, atty was sentenced to 25 yrs in jail; Hot tub incident in AK: secretary slip and fall.
2 – Inactive Assistance (in crime or fraud) – E.g., G.A. v Dennis Koltunchuk– Subornation of perjury in a deposition before the U.S. Attorney. Subornation of perjury: when you allow your client to give false testimony.
 
1.3 Diligence
Rule 1.3 – The Duty of Diligence – Rule: A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment: A lawyer’s work should be controlled so that each matter can be handled adequately.
 
1.4 Communication: The single most effective means of avoiding grievances/malpractice
 RULE 1.4 – Communication
You must promptly obtain any required informed consents.
You must reasonably consult with the client about the client’s objectives and how to fulfill them.
You must keep the client reasonably informed about the status of the client’s matter.
You must promptly comply with reasonable requests for information.
You 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.
(Make the client feel important; give the impression that the client’s matter is of utmost importance to you; ensure client feels understood and heard; promptly respond and fully advise).
 
1.5 Fees
Rule 1.5(a) -the fee must be reasonable!
The Factors for Reasonableness: (memorize these)
1. The time and labor required/novelty and difficulty of the matter/skill required;
2. The likelihood that acceptance of the matter will preclude other employment;
3. The customary fee for the services in that particular legal community;
In your market, area, or city
Ask other attys or economic survey published
4. The amount involved and results obtained;
5. Any time limitations imposed by the client or the circumstances;
6. Nature and length of the professional relationship with the client;
7. The experience, reputation and ability of the lawyer;
8. Whether the fee is fixed or contingefnt.
New Clients – Rule 1.5(b): In all new client situations:
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;
4. preferably in writing;
5. before or within a reasonable time of commencing the representation.
“or within a reasonable time…” Before any substantive work is performed in the case!
Rule 1.5(c):
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.
Rule 1.5(d):
A lawyer should not enter into an arrangement for, charge, or collect:
1 – any fee in a domestic relations matter, the payment or amt of which is contingent upon the securing of a divorce or upon the amt of alimony or support or property settlement in lieu thereof, or
2 – a contingent fee for representing a D in a criminal case
Contingent fees are prohibited in certain kinds of cases:
1. Divorce. A fee can not be contingent upon securing a divorce or on obtaining entitlement to alimony, support, property or custody. (No pre-J.O.D. contingent fee arrangements). (as atty, trying to preserve marriage, don’t try to promote divorce.) (for post-divorce judgment matters, contingency fees are allowed)
2. Criminal Matters. (in this case, there is no money, client is going to jail or not)
When seeking a contingent fee arrangement, you must advise the client of the fact of alternative fee arrangements.
Rule 1.5(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.
 
1.6 Confidentiality of Information
RULE 1.6 – The Ethical Duty of Confidentiality(broad rule) – Subsection (a): You shall not reveal information related to the representation of a client unless (only trumped by Rule 3.3):
1) the client gives informed consent;
Written consent after full disclosure
FULL disclosure requires communication and explanation of the material risks and potential adverse consequences to the client of any disclosure of confidential information. – must tell all risks before can get consent.
2) the disclosure is impliedly authorized; or,
Implied authorization to disclose exists when disclosure of confidential information is appropriate in carrying out the representation.
i.e. like when using insanity defense and going to reveal location of bodies for evidence, client knows, don’t have to keep asking permission
3) the disclosure is permitted by Paragraph (b).
Rule 1.6(b) Exceptions:
Pursuant to subsection (b), you may reveal information relating to the representation of a client to the extent reasonably believed necessary to: (“may” =disclosure is discretionary, not required except under Rule 3.3: Fraud on tribunal)
prevent certain bad acts of a client;(intent to commit a serious crime against another: crime, injury or death to another)
get ethics advice;
defend an allegation of wrongdoing;
if attorney charged criminally w/ fraud or have grievance filed against us, can reveal the confidential info that could clear us
collect a fee; or,
tell judge about fee agreement made and client’s finances, usually are confidential, but might be needed to disclose here
comply with other law.
Rule 1.6(b)(1): You may reveal information relating to the representation of a client to the extent reasonably believed necessary to prevent reasonably certain death or substantial bodily harm.
Public Policy: The value of human life outweigh