Legal Pro

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1.1 Competence

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o Competence requires a lawyer to provide competent representation to a client
o Competent representation is defined as the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation

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1.3 Diligence

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o Diligence requires that a lawyer act with reasonable diligence and promptness in representing a client

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1.4 Communication

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o You must promptly obtain any required informed consents
o You must reasonably consult with the client about the client’s objectives and how to fulfill them
o You must keep the client reasonably informed about the status of clients matter
o You must explain a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation
o You must promptly consult with the client regarding any limitation on your conduct when the client expects assistance not permitted by the rules
o You must promptly comply with reasonable requests for information

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1.5 Relevant Factors in Determining Reasonableness of Fees

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• Time & labor required
• Novelty & Complexity
• Customary charge in area for the kind of work
• Skill, experience & reputation
• Loss of opportunity of other employment
• AIC
• Whether fee is fixed or contingent

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Scope Representation and Communication

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 The scope of representation & basis or rate of fee must be communicated to the client, before or within a reasonable time of commencing the representation EXCEPT if charging regularly represented clients on the same basis or rate

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Contingent Fees

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 In order for a contingent fee to be ethical it must be in writing, signed by the client, state the method of determining the fee, notify client of any expenses he’ll be liable for AND upon conclusion of case must give client statement of the outcome of matter and method or determining recovery

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No contingent fees for

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 A lawyer must not charge a contingent fee for divorce cases before judgment (alimony or property settlement AND NOT for criminal cases

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Dividing Fees

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 Lawyer not in the same firm may divide fess only if
• Division is in proportion to the services performed by each OR each assumed joint responsibility for the representation
• Client agrees to the arrangement and its in writing
• Total fee is reasonable

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1.6(a) Confidentiality

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You must not reveal information related to the representation of a client unless
 The client gives informed consent
• Is written consent and full disclosure: communication & explanation of material risks & potential adverse consequences of disclosing confidential info
 The disclosure is impliedly authorized or
• this is needed to carry out the representation
 The disclosure is permitted by (b)

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1.6(b)(1) Bodily Harm Exception

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(1) to prevent reasonably certain death or substantial bodily harm;

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1.6(b)(2) Financial Injury

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to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services

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1.6(b)(3) Client Fraud w/help

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(3) to prevent, mitigate or rectify substantial injury to the financial interests or property 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 the client has used the lawyer's services

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1.6(b)(4) Legal Advice

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(4) to secure legal advice about the lawyer's compliance with these Rules

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1.6(b)(5) Self Defense

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(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client

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Noisy Withdrawal

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.i. The lawyer must w/d from any representation that directly or indirectly would have the effect of continuing the client’s future crime or fraud.
ii. The lawyer may w/d from all representation, and must w/d from all if the representation is likely to be known to and relied upon by 3rd parties to whom the fraud is directed, and the representation is likely to assist fraud.
iii. The lawyer may disavow any of her work product, notice to others, to prevent its use in the client’s continuing or intended future fraud = ‘noisy.’ This may be necessary to effectuate the lawyer’s w/d from representation.
iv. If the fraud is completed, and the lawyer does not know or reasonably believe that the client intends to continue the fraud or commit a future fraud by use of the lawyer’s services or work product, the lawyer may w/d, but may not disavow any work product.

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1.7A Conflicts Between Current Clints

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o A Concurrent conflict of interest exists if:
 The representation of one client will be directly adverse to (against) another client OR
 There is a significant risk that the representation of one or more clients will be materially limited by the lawyers’ responsibilities to another client, a former client or by a personal interest of the lawyer

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1.7b Lawyer may represent w/concurrent conflict IF

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 it is reasonable to conclude that the lawyer can represent both clients competently and diligently ( w/equal loyalty)
 the concurrent representation must not be prohibited by law
 the concurrent representation won’t involve the lawyer represent both sides of the claim in the same case AND
 Each affected client gives informed consent confirmed in writing

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1.8a Business Transactions with Clients

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o (a) Lawyer must not enter into a business transaction with a client OR knowingly acquire ownership, Possessory, security or other pecuniary interest adverse to client UNLESS
 The transaction & terms are fair & reasonable to the client and are fully disclosed and transmitted in writing in a manner that the client can reasonably understand

 Client is advised in writing of desirability of getting and is given reasonable opportunity to seek advice of an independent counsel about the transaction

 The client gives informed consent in writing signed by the client of the essential terms of the transaction AND the attorneys role , whether he’ll represent the client in the transaction

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1.8d Literary/Media Rights

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 Before the conclusion of representation, the lawyer must not agree to get literary or media rights in the portrayal of information relating to the representation

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1.8 E Financial Assistance to a Client

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 A lawyer must not provide financial assistance to client in connection with pending or contemplated litigation EXCEPT
• to advance court costs and expenses of litigation – repayment depending on outcome and
• in representing an indigent client, you may pay court costs or expenses of litigation on behalf of the client

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1.8f Persons Paying for Lawyers Services

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o (f) Person’s Paying for Lawyers services
 You must not accept compensation for the representation of your client from a third person UNLESS
• the client gives informed consent
• it doesn’t interfere with the lawyers independence of professional judgment and
• information concerning the representation is protected by 1.6

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1.8h Limiting Liability and Settling Malpractice Claims

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 A lawyer must not make an agreement prospectively limiting the lawyers liality to a client for malpractice UNLESS the client is independently represented in making the agreement
 A lawyer must not settle a claim or potential claim for malpractice with an unrepresented client or former client UNLESS he is advised in writing of desirability of getting and is given reasonable opportunity to get advice of independent counsel about the matter

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MR 1.6 Withdrawal

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L must W/D if :
Rep violates the rules or Law;
L’s condition materially impairs ability;
L Discharged;
Use of L’s services materially furthers crime or fraud
L may W/D if :
C persists in crime or fraud;
C used L’s advice to commit crime or fraud;
L considers case repugnant and disagrees
C fails to Substantially fulfill obligations after R. Warning L may w/d unless fulfilled;
C consents

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Requirements of Withdrawal

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L must have Ct permission toW/D if pleading is pending/filed or COA continues.

*R Notice - enough notice to allow C to protect INT, not (3) days before trial = malpractice.
* Must Return all papers, unless Fee are due, then may hold for security;
* Must Return all unearned fee, except unearned retainers;
* If dismissed or W/D before COA completed, THEN attorney is entitled to Q.Meruit for value of services: New York Rule–Q/M immediately without waiting for occurrence of the contingent event; California Rule–Q.M. but not until contingency occurs, if it doesn’t occur, L receives nothing; Florida Rule–L is entitled to Q.M. up to the limits of the fee agreement if and when contingency occurs.

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Client Trust Accounts

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ABA Model Rule 1.15 requires attorneys to keep their client’s money/property separate from their own and the law office accounts, and never commingle those funds, to maintain adequate records, to notify clients promptly when money or property is received on their behalf, and to deliver promptly any money or property that belongs to clients. See also Restatement Governing Lawyers, ss44 (2000). When a lawyer receives a large sum, to be held for a long period, she should make a specific agreement on how the fund will be handled.

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Bates v. State Bar of Arizona, 433 U.S. 350 (1977),

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The 1st Amendment commercial speech doctrine protects attorney advertising that is truthful and not misleading.

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In re RMJ

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the unanimous Court held that under the commercial speech doctrine a state may flatly prohibit lawyer advertising that is false or misleading, and that a state may regulate advertising that is not misleading if the state can demonstrate that the regulation directly serves a substantial state interest, and that the regulation is not more extensive than is necessary to serve that interest.

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Model Rules and Malpractice

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Restatement ss52(2), provides that, in a negligence action, the trier of fact may consider the defendant lawyer’s breach of a statute or rule as an aid to understanding and applying the standard of care, provided the statute or rule was designed to protect people similarly situated as the plaintiff. Yet, under ABA Model Rule 1.16(a)(1), if the attorney can show the client insisted that she further or commit and illegal act, the lawyer may be shielded from liability.