I) Organization of this Material
A. Duties to the Client
1. Rules 1.1 – 1.18
B. Duties to the Court
1. Rules 3.1 – 3.9
C. Duties to Society
1. Rules 2.1, 2.3, 2.4
2. Rules 4.1 – 4.4
3. Rules 6.1, 6.2, 6.5
4. Rules 7.1 – 7.5
D. Duties to the Profession
1. Rules 5.1 – 5.7
2. Rules 6.3, 6.4
3. Rules 8.2 – 8.5
II) Duties to the Client
A. Generally
1. Attorney/Client Relationship
a. Communication and Shared Decision-Making; Generally
i. Lawyers owe clients a duty to communicate with clients and to meaningfully share decision-making responsibilities with them [MR 1.2 and 1.4]
b. A lawyer may withdraw from representation when:
i. There is no client prejudice (unfair, undue delay); or
ii. Withdrawal is required under Rule 1.16; or
iii. The client is acting in bad faith
c. A lawyer can fire his lawyer at anytime without cause at any time
i. Clients must have complete faith and confidence in their legal representation
ii. This is vital to the success of our adversary system
iii. But, you may still be paid for the value of actual services render à quantum meruit
d. Two things to consider in deciding whether to accept a case:
i. Type of Matter
– Do you have the competency?
° A lawyer is competent if the lawyer has the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
– Do you have the time?
– Does the matter have merit?
ii. The Client
– Screen for a conflict of interest
° Determine the name of the party or parties with whom the prospective client has a dispute
– Screen for the problematic client
– Non-engagement letters
° Always send these if you decline to represent someone regardless of the reason
e. Elements of a Malpractice Claim à Vicarious Liability applies!
i. Attorney/client relationship (duty)
ii. Negligence (breach of the duty of care)
– Not liable for mere errors in judgment
iii. Proximate Cause (case within the case)
– But for the act or omission complained of, the client would have received a better result
iv. Damages
– Must be pled and proven
2. General Account vs. Trust Account
a. IOLTA/Trust Account
i. Unearned fees
ii. Unexpected Costs
iii. Exact Bank Service Charges
iv. You cannot take fees and costs from the trust account until the fees have been earned and the costs incurred
– The pre-mature withdrawal of trust account monies is misappropriation/embezzlement
b. General or Operating Account
i. Engagement Fees
ii. Earned Fees
3. Key Concepts Regarding Fees
a. Written agreements
i. Protects the attorney
– You may need to sue to collect your fees
ii. Elements of a good fee agreement
– In writing
– Terms are clear and concise
– Language in plain English (no legalese)
° If arbitration provision, you are bound by it
– No unethical/illegal terms
° usurious interest rate on overdue fees
° impermissible conflict waivers
° impermissible liability waivers—civil and disciplinary
° impermissible waiver of requirement to keep client property separate
iii. Contracts will always be construed against the drafter
– You will always have the burden to establish that the agreement is reasonable, ethical and legal
b. Reasonableness of Fees
i. “Fair” (Rule 1.5(a))
ii. Put yourself in the “shoes of the client”
c. Types of Fees
i. Hourly
– Billable hours requirements in law firms
– 2000 hrs per lawyer per yr
– Must spend 3 hrs in the office for every 2 hrs of billable time
° To bill 6 hrs, you must work a 10 hr day= 1500 to 1600 hrs a yr
ii. Flat/Fixed
– A set amount for an entire case or set amounts for each stage of a case
– Common in criminal cases
– The higher the fixed fee, the greater the risk of scrutiny
– Charge the value of the work to each client (reasonable) rather than the billable hours of the work
– Differs from a premium fee which is tacked on at the end and is tied to uncertain results, and a flat fee is agreed to at the start
iii. Non-Refundable
– In reality there is no such thing, b/c a fee always has to be reasonable (Cooper)
– Okay in theory, but are always subject to how reasonable they are
iv. Contingent
– Provides the poor with access to justice
– Provides incentive for the lawyer to do a good job, also encourages speedy resolution
– You may not allow your personal interest in the contingent fee to interfere with your professional judgment on behalf of the client (Rule 1.7, 1.8)
– Local Ct rules may limit the percentage a lawyer may receive
v. Minimum Fee
– A minimum amount that the matter will cost the client (reasonable)
– A minimum fee is billed against an hourly rate
– Earned on receipt
vi. Engagement Fee
– Fee paid for the sole purpose of securing your services
– No time is billed against it—simply for the privilege of having you as the lawyer
– Earned on receipt
– Is it reasonable?
vii. Mixed/Blended
– 1/3 contingent fee but if no recovery then an hourly rate or, a 15% contingency along with a reduced fee
d. Collecting your Fee
i. 1.6 has a limited exception allowing you to reveal confidences and secrets necessary to collect or establish a fee
ii. You may not charge inter
ad protected by the ethical duty of confidentiality (Rule 1.6)
e. Source Must be the Client
i. To be protected,
ii. The info MUST originate from a confidential communication/setting
iii. With the client/client’s agent à NOT third persons/Non-clients
f. Inadvertent Waiver:
i. Any public communication of info confided to you,
ii. Waives the privilege to that info and maybe more
iii. Examples: Stray email, faxes, text messages, metadata
8. Crime Fraud
a. Pre-Fraud/Crime
i. A client who seeks to use your services to commit a crime or fraud FORFEITS the protection/confidentiality of attorney
ii. Keep in mind that the client can prevent any disclosure simply by refraining from the wrongful conduct
iii. Caveats
– While the language of rule says disclosure is “discretionary”, disclosure may be necessary to avoid a violation of Rule 1.2(d) – assisting your client in the commission of a crime or fraud
° Remember, inactive assistance (knowledge with no corrective action) is unethical
– The mere suspicion that a client intends to commit a crime or fraud is NOT enough to permit disclosure
° Belief must have some “foundation in fact” = “reasonably certain”
b. Disclosure Must be Limited
i. If disclosure is permitted, you may disclose ONLY to the court or to others that need to know
ii. Appropriate protection orders or other arrangements should be sought to the fullest extent possible
c. Post-Fraud/Crime
i. This exception applies in situations where you don’t learn of the client’s crime or fraud until after its commission
ii. In such situations, there is no ability to prevent the wrong
iii. And, the client has lost the option to refrain from the conduct to prevent disclosure
9. Evidence
a. If client reveals the location of evidence and the lawyer or lawyer’s agent “merely inspects the evidence without disturbing it, their knowledge of the location of the evidence and observations are privileged
b. If the lawyer/lawyer’s agent “removes or disturbs the evidence, the original location and observations are no longer privileged à the privilege has been destroyed
10. Loyalty to Current Clients (Conflicts of Interest)
