3.14 Law Firms Flashcards
Partners and Others Exercising Managerial Responsibility “
REASONABLE Efforts [Negligence Standard] To
- System is in Place to Ensure Compliance with Rules
- Ensure other Lawyers (Under Direct Supervisor Authority) conform with the Rules
RESPONSIBLE [Vicarious Liability] for Anothers Violation IF
-Orders OR
-With Knowledge of Violation Ratifies OR
-Direct Supervisory Authority AND
– Knows Conduct [Actual Knowledge May Be Inferred from Circumstances]
– When Consequences Can be Avoided or Mitigated AND
– Fails to Take Remedial Action
= Coconspirator, Manager is Also Responsible for the Fraud
Rules Above are Extended to Lawyers Assistants to Ensure their Conduct is Compatible with Obligations of the Lawyer”
Subordinate Lawyers.
“Bound by Rules NOTWITHSTANDING Action at Direction of Another
NOT a Violation IF Acts in Accordance Supervisors REASONABLE Resolution of Arguable Question of Professional Duty
NOTE: Really applies only in conflicts cases that are resolved by the firms conflicts committee”
Terms of Employment within Firm
“LAW FIRM Lawyer is an At-Will-Employee
IN-HOUSE COUNSEL Generally Has Stronger Protections
CANNOT Discharge on Discriminatory Basis, [D.C. Rule: 9.1 Race, Color, Creed, National Origination, Marital Status, Sexual Orientation, Family Responsibilities, Physical Handicap]
LEAVING A FIRM
Obligation to Inform Clients about Change in Their RepresentationFiduciary Duty / Obligation to Inform Firm PRIOR To LeavingFirms will generally lock you out as soon as you inform them you are leaving.
Fiduciary Duty / Obligation to Inform Firm PRIOR To Leaving
“Absent an Agreement with the Firm Providing More Permissive Rule
May Solicit Clients ONLY Lawyer is Actively and Substantively Working [Elsewhere?]; AND
ONLY AFTER the Lawyer has Adequately and Timely Informed the Firm of the Intent to Contact”
Firms will generally lock you out as soon as you inform them you are leaving.
After Ceasing Employment, Same Rules Apply to Contact as They Do For Any Other Lawyer
NOTE: Underlying Premise = Client Gets to Decide Who Represents
EMPLOYMENT AGREEMENT, SHALL NOTS
“Make Agreement Restricting Subsequent Practice with Firm, Essentially Prohibits Non-Compete Agreements in Law
However, Partners may be required to sign long-term personal liability for firm obligations (i.e. rent over time) or mortgage on assets (i.e. new IT system)
Make Agreement Restricting Subsequent Practice as Part of a Settlement Agreement
Defendant cannot make settlement contingent on having the lawyer bringing the suit not represent anyone else against them in similar matter, Prevents defendants from quelling other suits by buying off the first suit (such suits are often on contingent fees)”
SALE OF A FIRM
“Partners Leaving a Firm Get Their Firm Share on the Way Out
Firms (Generally Smaller, Even Single Practitioner) May Sell Good Will IF:
- Seller Ceases to Engage in Private Practice or Area of Practice
- Entire Practice or Area of Practice is Sold to One or More Lawyers
Seller Gives Clients Written Notice Of:
- Proposed Sale
- Clients Right to Retain Other Counsel and Possession of Their File
- Consent will be presumed if NOT OBJECTION within 90 days of the receipt of notice.
- Fees Charged to Clients Do NOT Change By Reason of Sale”
PROFESSIONAL INDEPENDENCE AND FEES, SHALL NOT
“Share Legal Fees with Non-Lawyer
Form Partnership with Non-Lawyer is ANY Activities Consist of the Practice of Law
Permit Another Control of Professional Judgment
Practice Law for Profit IF
- Non-Lawyer Owns Interest Therein
- Non-Lawyer if Director or Officer OR
- Non-Lawyer Has Right to Control Professional Legal Judgment”
PROFESSIONAL INDEPENDENCE AND FEES, SHALL NOT EXCEPTIONS
Fiduciary of Lawyers Estate MAY Hold Interest for Reasonable Time [SAME for Sale of Practice]
Non-Employees as Part of Compensation or Retirement Plan, even if based in whole or in part on profit sharing.
Court Awarded Legal Fees MAY be Shared with Nonprofit that Employed, Retained, or Recommended Employment of Lawyer in Matter
PROFESSIONAL INDEPENDENCE AND FEES, SHALL
Subject to Rules of Professional Conduct for Provision of Law Related Services IF:
- Circumstances Provided NOT Distinct from Lawyers Provision of Legal Services to Clients OR
- Failure to Take Reasonable Measures to Assure Person Obtaining Law-Related Services KNOWS the Services are NOT Legal Services / Client-Lawyer Protections
Law Related Services =
“Might reasonably be performed in conjunction with and in substance are related to the provision of legal services that are NOT prohibited as unauthorized practice of law when provided by non-lawyer.
NOTE: Allows for lawyers to operate next to other services (if not in partnership with those services) as long as services rules are followed.
Recommending Using that Service IS SUBJECT to Clients Informed Consent under 1.8(a) Regarding Business with Client.
Must scrupulously follow rules regarding conflicts of interest.”
