Professional Responsibility Outline

PROFESSIONAL RESPONSIBILTY
OUTLINE

Client-Lawyer Relationship

1.0 – Terminology
Ø Informed Consent: where person agrees to a proposed course of conduct after lawyer has explained the material risks and reasonably available alternatives to the proposed conduct.

1.1 – Competence (Is lawyer Competent?)
Ø Rule: A lawyer shall provide competent representation to a client.
o Test: The lawyer has the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

1.2 – Scope of Representation (Trumps A/C Privilege)
a. Lawyer shall abide by a client’s objectives whenever possible and consult with a client as to how to achieve those objectives. (A MUST in criminal cases).
b. Representation of client is NOT an endorsement of the client’s beliefs.
c. Limitation of the scope may be imposed if reasonable AND client gives informed consent.
d. Lawyer shall not counsel or assist a client to engage in conduct Lawyer knows to be criminal or fraudulent (active or passive)
a. This may raise 3.3 and 3.4 issues.

1.3 – Diligence (Does Lawyer have time?)
Ø Rule: A lawyer shall act with reasonable diligence and promptness in representing a client
o [Comment 2: L’s work should be controlled so that each matter can be handled adequately.]

1.4 Duty to Communicate
· Must promptly obtain any required informed consent.
· Must reasonably consult with client about client’s objectives and how to fulfill them
· Must keep client reasonably informed about state of client’s matter.
· Must promptly comply with reasonable requests for information
· Must promptly consult with client regarding any limitation on L’s conduct when the C expects assistance that violates RPC.
· Must explain a matter to the extent reasonably necessary for client to make informed decisions regarding the representation.

1.5 – Fees
Ø (a) Factors for Reasonableness: A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered:
o the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
o the likelihood that C’s case will preclude other employment by the lawyer;
o the fee customarily charged in the locality for similar legal services;
o the amount involved and the results obtained;
o the time limitations imposed by the client or by the circumstances;
o the nature and length of the professional relationship with the client;
o the experience, reputation, and ability of the lawyer or lawyers performing the services;
o whether the fee is fixed or contingent.
Ø (b): In all new client situations, the attorney shall communicated with the client, preferably in writing,
o The scope of the representation;
o The basis or rate of the fee;
o Before or within a reasonable time of commencing the representation (i.e. before filing an appearance and/or before you do ANY substantive work).
Ø (c) Contingent Fees: A fee contingent on the outcome of the matter for which service is rendered must:
1. Be in writing
2. Signed by the client
3. Set forth method of determining the fee
4. Set forth provisions for the treatment of expenses

Ø (d) C.F. NOT applicable to:
o Domestic relations involving securing divorce, alimony or support, or property settlement in lieu thereof. OR
o Criminal matters
Ø (e) Splitting of Fees (ABA Ban on referral fees)
o Rule: A lawyer may only share fees with a lawyer NOT in their firm if:
1. The split is in proportion to the services performed by each lawyer; AND
2. The client has given consent to the split; AND
3. The total fee is reasonable.

Elements of a Good Fee Agreement:
1. In writing
2. Terms are clear and concise
3. Language is plain English (no legalese)
4. No unethical/illegal terms
a. Usurious interest rate on overdue fees (7% per annum in MI for written; 5% max is oral; 0% no agreement)
b. Impermissible conflict waivers
c. Impermissible liability waivers – civil and disciplinary
d. Impermissible waiver of requirement to keep client property separate
5. Always have client sign fee agreement as their confirmation understanding to the fee

1.6 Duty of Confidentiality
Ø Rule: L shall NOT reveal any information related to the representation of a client UNLESS:
o C gives informed consent.
o Disclosure is impliedly authorized (during trial to advance C’s interest); OR
o Disclosure is permitted under (b) where, to the extent reasonably believed necessary:
1. to prevent reasonably certain death or substantial bodily harm. (imminent)
· Balancing Test: Must carefully balance the public policy considerations behind disclosure against L duties of loyalty and confidentiality to C. DISCLOSURE IS ALWAYS LAST RESORT!!!
2. Pre-Fraud/Crime: to prevent C from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial or property interest of another; and in furtherance of which C has used or is using L’s services.
3. Post-Fraud/Crime: to prevent, mitigate or rectify substantial injury to the financial or property interest 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 client used L’s services .
4. Defend Allegations/Fee: To clear L of any allegation of wrongdoing,