Lawyer MUST provide competent representation to a client

Competence is defined as the legal knowledge, skill, and thoroughness and preparation that is reasonably necessary for the representation

Rule 1.2:  Scope of Representation and Allocation of Authority between Client and Lawyer

When MUST a lawyer abide by a client's decision?

Lawyer must abide by clients decisions concerning

(1) objectives of representation

(2) means of pursuing this objective

(3) settlement

A lawyer shall act with reasonable diligence and promptness in representing a client.

what is "zealous representation"

Rule 1.4:  Communication

6 things to communicate

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance that requires their informed consent

(2) maintain reasonalbe consultations w/ the client about the means being used to accomplish the client's objectives

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(6) explain matters reasonably necessary for the client to make informed decisions

Rule 1.5a:  Fees

Reasonableness of Fees

(a) lawyers cannot make agreements for charge, or collect unreasonable fees, or an unreasonable amount for expenses

"Reasonableness" is determined by:

(1) time and labor req'd

-- novelty/difficulty of issues

-- skill req'd to perform service

(2) likelihood that the acceptance of a      particular client will preclude other      employment by the lawyer

(3) customary fee in the area

(4)nature and length of the prof.          relationship w/ the client

(5)experience, reputation, ability of     the lawyer in performing services

(6) fixed v. contingency

Rule 1.5b:  fees

Communication of Fees to Clients

(1)Basis of the rate of the fee, AND

(2) the scope of the representation

MUST be communicated to the client either

(1) before representation, or

(2) within a reasonable time shortly after rep begins

--preferably in writing

--EXCEPT when a regular client is charged monthyl @ the same rate

--> must communicate a rate change

Contingency fees are OK except when

(1) it is a matter of domestic relations dependant on securing a divorce, alimony, support, or property settlements

(2) the defendant is in a criminal case

Contingency Fee Agreements must

(1) be in writing and signed by client

(2)state method by which the fee agreement is      determined

i.e. percent deducted from client's recovery

(3) must account for any different percentage of       recovery for settlement, trial, appeal, etc

Upon conclusion of the matter, lawyer must

(1) provide a written statement of the 

--outcome

--recovery

--remittance to client

--how remittance was determined

Fee Splitting with a lawyer from outside the firm is ok if:

(1) division is in proportion to the services performed

(2) the client agrees and confirms in writing

(3) the total fee is reasonable

(1) client gives informed consent

(2) disclosure is impliedly authorized in order to carry out representation

(3) disclosure is necessary to prevent the client from committing, or to mitigate or rectify the client's committing of

a) a crime or fraud

b) that is reasonalbt certain to result in substantial injury of the financial or property interests of antoher

c) that is in furtherance of which the client is using the lawyers services

3) secure legal advice about compliance with these rules

4) establish a

--claim or defense on behalf of a lawyer in a dispute b/w the client and the lawyer, or

--a criminal defense based upon conduct in which the client is involved, --response to allegations related to the lawyers rep of the client

5) comply with a court order

Rule 1.7:  Conflicts with Current Clients

When does a conflict exist in general?

1) the representation of one client will be directly adverse to another

2) there is a significant risk that the rep of one or more clients will be materially limited by the lawyer's duties of rep to another client/former client/3rd person/personal interests of the lawyer

Rule 1.8a:  Conflicts of Interest--Current Clients (Business Transactions)

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction

Rule 1.8a:  Conflicts of Interest--Current Clients 

(use if information)

Rule 1.8: Conflicts of Interest--Current Clients

(gifts)

Lawyer can't

(1) solicit any substantial gift from a client, including       a testamentary gift,

(2)  prepare on behalf of a client an instrument giving        the lawyer or a person related to the lawyer any        substantial gift

--> unless the lawyer or other recipient of the      gift is related to the client.

** related persons = spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

Rule 1.8: Conflicts of Interest--Current Clients

(literary/media rights)

Rule 1.8: Conflicts of Interest--Current Clients

(financial assistance to clients)

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Rule 1.8: Conflicts of Interest--Current Clients

(compensation for one other than the client)

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer's independence of professional judgement or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

Rule 1.8: Conflicts of Interest--Current Clients

(aggregate settlements)

Rule 1.8: Conflicts of Interest--Current Clients

(limitation of lawyer's liability)

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

Rule 1.8: Conflicts of Interest--Current Client

(proprietary interest in the subject matter of the suit)

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

Rule 1.8: Conflicts of Interest--Current Client

(sexual relations)

Rule 1.8: Conflicts of Interest--Current Client

(other members of the firm) 

Rule 1.9: Duties to Former Clients

(individual clients)

Once you have formerly represented a client in a matter, the lawyer may not:

- represent a different client in the same or a substantially related matter if their interest is directly adverse to the former client's

- UNLESS the former client gives 

1) informed consent

2) in writing

A lawyer may not knowingly represent a person in the same or substantially related matter if the firm that the lawyer was formerly associated with had previously represented a client

1) whose interests are materially adverse to that person, and

2) about whom the lawyer has acquired       privileged information (rule 1.6 and 1.9c) that is material to the matter

EXCEPT: when the former client gives informed consent in writing

Ex:  During a tobacco litigation case, I defended A while with XYZ, LLC.  In my new job as a plaintiff's lawyer, I may not represent P in a suit against A, unless A gives consent.  

Once the lawyer or the lawyer's firm has represented a client, may not 

1) use info relating to that representation against the client 

UNLESS (1) the ABA rules permit it, or (2) the information has become generally known

2) reveal info info relating to the client unless these rules permit or require it with respect to a client

Rule 1.10: Imputation of Conflicts (on other members of the firm)

What happens when there is a conflict of interest with one member of the firm?

If you practice with a firm, the lawyer may not knowingly represent a client that any other member of the firm would be prohibited from representing due to a conflict of interest (Rule 1.7, 1.9)

EXCEPTION: if the prohibition is based on a personal interest of the other lawyer and does not present a significant risk of materially limiting the representation of the client by the other members of the frim

Once a lawyer has left a firm, the firm is not prohibited from taking a client whose interests are adverse former lawyer's clients that are no longer represented by the firm, UNLESS

1) the matter is the same or substantially     related to that in which the former      lawyer represented the client

2) any lawyer still at the firm has protected information that is material to the matter (protected under 1.6 and 1.9c)

The affected client may waive disqualification

Rule 1.2:  Scope of Representation and Allocation of Authority between Client and Lawyer

When may a lawyer act without express authority?

Rule 1.2:  Scope of Representation and Allocation of Authority between Client and Lawyer

Other issues:  scope, imputed beliefs

The scope of representation can be limited 

(1) by informed consent of the client

(2) where the limitation is reasonable

A clients beliefs are not imputed on the lawyer

Rule 1.2:  Scope of Representation and Allocation of Authority between Client and Lawyer

Client's criminal tendancies

Lawyer cannot

(1) engage, or

(2) assist

in conduct known to be

(1) criminal, or 

(2) fraudulent

However, the lawyer can 

(1) discuss the legal consequences of any proposed course of conduct with the client, or

(2) counsel/assist a client to make a GF effort to determine the law

Rule 1.11:  Special Conflicts of Interest for Former and Current Gov't Officers and Employees

(Except as permitted by law), a lawyer who has formerly served as a public officer or gov't employee

1) is subject to 1.9c (can't use info against      former clients)

2) can't represent a client in connection with a matter that the lawyer was personally and substantially involved in as a public officer of gov't employee

UNLESS the proper gov't agency gives informed consent in writing

Rule 1.11:  Special Conflicts of Interest for Former and Current Gov't Officers and Employees

(imputation on the firm)

When a lawyer is prohibited from representing a client under part a of this rule, then no other lawyer in any firm that the lawyer is associated with may knowingly undertake or continue representation in such a matter, UNLESS

1) the disqualified lawyer is timely screeed from ANY participation in the matter, AND

2) does not rec'v any part of the fee, AND

3) written notice is promptly given to the proper gov't agency so as to enable the agency to ascertain compliance with the provisions of this rule

Rule 1.11:  Special Conflicts of Interest for Former and Current Gov't Officers and Employees

(known confidential information)

A lawyer having info that

(1)he KNOWS is confidential gov't info about a person 

(2) he acquired while serving as a public officers or employee

MAY NOT represent any client

(1) with interests adverse to that person

(2) in a matter in which the info will disadvantage that person

* a firm may represent the client under the same rules as in section b of this rule (timely screening, no fees)

Rule 1.11:  Special Conflicts of Interest for Former and Current Gov't Officers and Employees

(definition of "confidential gov't info")

"Confidential Gov't Info" is:

information that has been obtained under gov't authority,

and (at the time that the Rule is applied) the gov't is:

(1) prohibited by law from disclosing

OR

(2) has a legal privilege not to disclose and the info is not otherwise available to the public

Rule 1.12: Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral

(former matters as a judge)

A lawyer may not represent anyone in connection with a matter in which the lawyer has already participated substantially and personally as a 

(1) judge or other adjudicative officer

(2) arbitrator

(3) mediator

(4) other 3rd party neutral

(5) a law clerk to 1

EXCEPTION:  an arbitrator selected as a partisan of a party in a multimember arb panel is not prohibited from representing that party

If a lawyer is disqualified under section 1.12(a), then no lawyer in the firm he is associated with may knowingly undertake or continue to represent in the matter unless

(1) the disqualified lawyer is screened from participation in the matter and gets not part of the fee, 

(2) written notice is promptly given to the partiesand any appropriate tribunal to enable them to ascertain compliance with these rules

Rule 1.14: Client with Diminished Capacity

How is capacity diminished?

Rule 1.14: Client with Diminished Capacity

(maintenance of a normal a-c relationship)

Rule 1.14: Client with Diminished Capacity

(risk of harm)

A lawyer may take reasonably protective action when he

(1)reasonably believes that the client has diminished capacity, and

(2) the client is at risk of substantial physical, financial, or other harm unless action is taken, AND

(3) he cannot adequately act in the client's own interest

Rule 1.14: Client with Diminished Capacity

What is reasonably protective action?

"reasonalby protective action" includes

(1) consulting with individuals or entities that have the ability to take action

(2) seeking the appointment of a guardian ad litem, conservator, or guardian (when appropriate)

Rule 1.14: Client with Diminished Capacity

How does Rule 1.6 affect the seeking of protectice action?

Information relation to the representation of a client with diminished capacity is still protected by rule 1.6.

The lawyer, in seeking protective action, is impliedly authorized to reveal info about the client, but only to the extent reasonably necessary to protect the client's interests

Rule 1.15:  Safekeeping Property

(separate accounts)

When keeping a client or other 3rd party's property in connection with representation, the lawyer must keep his property and the other property separate.

1) Funds should be maintained in a separate account where the lawyer's office is situated, OR elsewhere with consent.

2) Other property should be IDd as such and appropriately safeguarded.

3)Complete records must be maintained and preserved for 5 years after termination of representation.

Rule 1.15:  Safekeeping Property

When can a lawyer put personal funds into a client's trust account?

A lawyer can deposit funds into a client's trust account

(1) to pay bank service charges--must be in an amount necessary for that purpose

(2) MUST deposit legal fees and expenses that the client paid in advance

--these funds may only be withdrawn as fees are earned and expenses are incurred

Rule 1.15:  Safekeeping Property

What happens when a lawyer rec'vs funds or property for his client or other 3rd party?

1) Lawyer must promptly notify them

2)promptly deliver to them what they are entitled to rec'v (unless excepted by law or this rule)

3) render a full accounting of the rec'vd funds/property upon request

Rule 1.15:  Safekeeping Property

What happens when >1 person claims the property that the lawyer is in possession of?

Must keep it in a separate until the dispute is resolved

must promptly distribute all portions of the property that are not in dispute

Rule 1.16: Declining or Terminating Representation

When must a lawyer terminate or decline?

A lawyer may not undertake, or if already started, may not continue, representation of a client if:

1) it is a violation of these rules

2) the lawyers physical or mental condition materially impairs the lawyer's ability to re the client

3) the lawyer is discharged

Rule 1.16: Declining or Terminating Representation

When may a lawyer withdraw rep?

1) when withdrawal can occur without a material adverse effect on the interests of the client

2)when the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent

3) when the client has used the lawyer's services to perpetrate a crime fo fraud

4) the client insists on taking action that the lawyer considers repugnant or has a fundamental disagreement with

5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that withdrawal is pending

6) the rep will result in an unreasoanble financial burden on the lawyer or has been unreasonably difficult by the clien

7) other good cause

Rule 1.16: Declining or Terminating Representation

(permission of the court)

The lawyer must comply with appicable laws about notice to or permission of the tribunal when terminating.  

If the tribunal orders him to continue, he must.  

Upon termination, the lawyer must take reasonable steps to protect the interest of the client such as

1) giving reasonable notice of termination

2)allowing time to employ other counsel

3)surrendering papers and property that the client is entitled to

4) refunding advance payment that has not be earned or incurred

Rule 1.18: Duties to Prospective Clients

What is a prospective client?

Rule 1.18: Duties to Prospective Clients

Are conversations with a prospective client protected?

A lawyer cannot represent a client with interests materially adverse to those a prospective client in the same or substantially related matter if the info rec'd from the prospective client can significantly harm the person in the matter.

A firm can take the client if the disqualified lawyer is

1) screened,

2) no fees,

3) the affected and prospective client give informed consent in writing

4) the lawyer who rec'vd info too reasonable measure to avoid exposure to more disqualifying info that would be reasonably nec to determine if they should take on the client

5) notification to the pro. client