ABA Model Rules - Rule 1 Questions

Question 1

What does Rule 1.1 govern?

Answer 1

Rule 1.1 governs the competence of a lawyer.

Question 2

Rule 1.1: What factors are evaluated when determining the competence of a lawyer?

Answer 2

(1) the relative complexity and specialized nature of the matter

(2) the lawyer’s general experience

(3) the lawyer’s training and experience in the field in question

(4) the preparation and study the lawyer is able to give the matter

(5) whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

Comment [1]

Question 3

Rule 1.1: What is the required proficiency to be deemed competent?

Answer 3

“In many instances, the required proficiency is that of a general practitioner.”

Comment [1]

Question 4

Rule 1.1: Is the level of competence required always that of a general practitioner?

Answer 4

No. “Expertise in a particular field of law may be required in some circumstance.”

Comment [1]

Question 5

Rule 1.1: Does a lawyer need special training or prior experience to handle legal problems of a type with which they are unfamiliar?

Answer 5

No. “A lawyer can provide adequate representation in a wholly novel field through necessary study.”

Comment [2]

Question 6

Rule 1.1: When may lawyers give advice or assistance in an area they normally lack the skill required to help in?

Answer 6

“In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”

Comment [3]

Question 7

Rule 1.1: What is required for competent handling?

Answer 7

“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.”

Comment [5]

Question 8

Rule 1.2: What is governed by Rule 1.2?

Answer 8

The scope of representation and allocation of authority between lawyer and client.

Question 9

Rule 1.2: Who determines the goals of the representation?

Answer 9

The client determines the goals of the representation.

Question 10

Rule 1.2: Who determines the means of the representation?

Answer 10

The lawyer normally has control of the legal and tactical matters of the representation.

Question 11

Rule 1.2: Can the client authorize their lawyer to take specific action on their behalf?

Answer 11

Yes.

Comment [3]

Question 12

Rule 1.2: Does representing a client constitute approval of the client’s views or activities?

Answer 12

No.

Comment [5]

Question 13

Rule 1.2: May a lawyer present an analysis of legal aspects of questionable conduct?

Answer 13

Yes, but they may not recommend the means by which a crime or fraud might be committed with impunity.

AKA they can tell their client that they will likely get X amount of years if convicted of Y, but they can not recommend that a client take a different course of (illegal) action.

Comment [9]

Question 14

Rule 1.2: What if a client’s course of action becomes fraudulent during the course of the representation?

Answer 14

“[A] lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter.”

Comment [10]

Question 15

What does Rule 1.3 govern?

Answer 15

Rule 1.3 governs the degree of diligence and promptness that the lawyer is expected to work within.

Question 16

Rule 1.3: A lawyer is expected to “act with commitment and dedication tot he interests of the client and with zeal in advocacy upon the client’s behalf”, but where is the line?

Answer 16

“A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Comment [1]

Question 17

Rule 1.3: Does a lawyer’s duty to act with reasonable promptness require them to avoid postponement at all costs?

Answer 17

No. “A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.”

Comment [3]

Question 18

Rule 1.3: What duties do sole practitioners have to their clients that other lawyers may not?

Answer 18

“To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent to review client files, notify each client of the lawyer’s death or disability, and determine where there is need for immediate protective action.”

Question 19

What does Rule 1.4 govern?

Answer 19

Rule 1.4 governs communications with the client.

Question 20

What does Rule 1.4 say?

Answer 20

Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(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.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 21

What does Rule 1.5 govern?

Answer 21

Rule 1.5 governs fees.

Question 22

What does Rule 1.5(a) say?

Answer 22

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

Question 23

What is the first factor listed in Rule 1.5(a)?

Answer 23

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

Question 24

What is the second factor listed in Rule 1.5(a)?

Answer 24

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

Question 25

What is the third factor listed in Rule 1.5(a)?

Answer 25

(3) the fee customarily charged in the locality for similar legal services;

Question 26

What is the fourth factor listed in Rule 1.5(a)?

Answer 26

(4) the amount involved and the results obtained;

Question 27

What is the fifth factor listed in Rule 1.5(a)?

Answer 27

(5) the time limitations imposed by the client or by the circumstances;

Question 28

What is the sixth factor listed in Rule 1.5(a)?

Answer 28

(6) the nature and length of the professional relationship with the client;

Question 29

What is the seventh factor listed in Rule 1.5(a)?

Answer 29

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

Question 30

What is the eighth factor listed in Rule 1.5(a)?

Answer 30

(8) whether the fee is fixed or contingent.

Question 31

What does Rule 1.5(b) say?

Answer 31

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

Question 32

What does Rule 1.5(c) say?

Answer 32

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

Question 33

What does Rule 1.5(d) say?

Answer 33

A lawyer shall not enter into an arrangement for, charge, or collect:

Question 34

What is the first prohibited fee in Rule 1.5(d)?

Answer 34

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

Question 35

What is the second prohibited fee in Rule 1.5(d)?

Answer 35

(2) a contingent fee for representing a defendant in a criminal case.

Question 36

What does Rule 1.5(e) say?

Answer 36

(e) a division of fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.