ABA MODEL RULES
CONTENTS
Preamble, Scope, and Terminology Rules Client-Lawyer Relationship
COMPETENCE (1.1)
• Legal Knowledge (keeping abreast of law)
• Skill
• Thoroughness
• Adequate Preparation
Factors:
• Relative complexity
• Specialized nature of matter
• Lawyer’s general experience
• Lawyer’s training
• Experience in field
• Study and preparation
• Association with competent lawyer
SCOPE OF REPRESENTATION (1.2)
Unless otherwise stated in rules, lawyer shall abide by client’s decision regarding objectives of representation
Lawyer shall consult with client about how to achieve objectives
Client decides:
– whether to plead guilty
– whether to settle civil suit
– whether to testify
– whether to plea bargain
– whether to waive right to speedy trial
– whether to appeal
Lawyer decides:
– whether to call a witness even if client insists
– whether to waive late filing or extend time
– what witnesses to call
– whether to conduct cross-examination
– strategic/tactical matters
Representation of client does not constitute endorsement of client’s political, economic, social or moral views
Lawyer may limit scope of representation, if reasonable and have informed consent of client
Lawyer shall not counsel client to engage or assist client in crime or fraud
DILIGENCE (1.3)
• Reasonable diligence
• Promptness
Lawyer shall pursue matter despite opposition, obstruction or personal inconvenience to lawyer
Lawyer must act with commitment and zeal to client
Lawyer must control work load
Lawyer should not procrastinate (S/L for example)
COMMUNICATION (1.4)
Lawyer shall:
– promptly inform client of any circumstances requiring informed consent
– reasonably consult with client about means of achieving client objectives
– keep client reasonably informed about status
– promptly comply with reasonable requests for information
– consult with client about relevant limitations on lawyer’s conduct
– explain matter to extent reasonably necessary to permit client to make informed decisions
Determine How To Communicate With Client
§ Telephone
§ Email
§ Fax
§ Mail
§ Texting
§ Other
– Remember ethical duty of confidentiality
– Listen
– Spell client’s name correctly
– Know who your client is or representative of client
FEES (1.5)
Lawyer shall not make an agreement for, charge, or collect an unreasonable fee
Before/Within reasonable time of starting representation, lawyer shall communicate to client:
• Scope of representation
• Basis/rate of fee
• Costs for which client is responsible
• Preferably in writing
• Writing strongly encouraged to reduce misunderstandings
Above Rule does not apply to steady client if basis/rate the same for previous representation
Determining Reasonableness:
1. Time, labor, novelty, difficulty, skill
2. Likelihood that acceptance of case will preclude other employment, if apparent to client
3. Fee customarily charged in locality
4. Amount involved/results obtained
5. Time limitations imposed by client
6. Nature/length of professional relationship
7. Experience, reputation, ability
8. Whether fee is fixed or contingent
• All 8 factors may not be relevant in every case
Division of Fees
Division of fees between lawyers not in same firm only allowed if:
– Division in proportion to services provided OR each lawyer assumes joint responsibility;
– Client agrees as to each lawyer’s share and agreement confirmed in writing,
– AND Total fee is reasonable
The Billable Hours Treadmill
• Financial pressure
• Quantity over quality
• Don’t encourage lawyers to prepare plan at outset
• Doesn’t allow client to predict cost of legal services
• Penalizes the efficient, productive lawyer and rewards inefficient lawyer
• Di
– paralegals
Lawyer shall not reveal information relating to the representation, UNLESS:
– informed consent,
– implied authority, OR
– exception under 1.6(b)
Informed Consent
• See Rule 1.0 for definition
• Simplest exception and easy to apply
• Should secure in writing
Implied Authority
• When disclosure is appropriate in carrying out representation
» Admit a fact that can not properly be disputed
» Make a disclosure to facilitate a satisfactory conclusion
» Necessary to seek the desired relief
Exceptions under 1.6(b)
– Details when a lawyer may disclose information otherwise protected by 1.6
– Requires some judgment
– Disclosure adverse to client’s interest should be no greater than lawyer believes is reasonably necessary to the purpose
– Disclosure not required under 1.6(b)
– Before making disclosures under this Rule, where can, lawyer should first seek to persuade client to take suitable action to obviate need for disclosure
• No ethical duty to disclose under 1.6
• Disclosure discretionary with lawyer
• However, disclosure may be required under other rules/law or to avoid civil/criminal liability
• 3.3
• 1.2(d)
• Silence can = assistance with crime/fraud
Remember: Mere suspicion that client intends to commit crime/fraud is not enough to permit disclosure
– Lawyer must have some foundation in fact, such as direct information from client or some other reliable source
– May only disclose to court/others who need to know
– Appropriate protective orders should be sought
