Basic Duties of Lawyers

Question 1

What is the rule about competence?

Answer 1

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Rule 1.1

Question 2

How are newly barred attorneys supposed to practice if there’s Rule 1.1?

Answer 2

Putting in adequate time to learn the practice area through things like treatises, using Practical Guidance on Westlaw/Lexis, taking CLEs, or consulting with other attorneys in the firm can all be ways to meet the competence requirement.

Rule 1.1 - Comment [2]

Question 3

What is the degree of proficiency required to meet the requirements of Rule 1.1?

Answer 3

The level of proficiency is normally that of a general practitioner, but expertise in a particular field of law might be required n some circumstances.

Rule 1.1 - Comment [2]

Question 4

Who decides the objectives of the representation?

Answer 4

The client decides the objectives of the representation.

Rule 1.2(a)

Question 5

What are the choices that are expressly protected as being the sole domain of the client in Rule 1.2(a)?

Answer 5

(1) In civil cases, the client has the right to make a decision about whether or not to settle or take a case a trial.

(2) In criminal cases, the client has the right to:

(A) decide what plea to enter;

(B) whether to have a jury or bench trial; and

(C) whether or not the client will testify

Rule 1.2(a)

Question 6

What if a client insists on using illegal or unethical conduct?

Answer 6

You may not assist a client in conduct that the knows is criminal or fraudulent, but you may discuss the legal consequences and may assist a client to make a good faith effort to determine the validity.

Rule 1.2(d)

Question 7

What if a lawyer insists on expanding the agreed upon scope of representation?

Answer 7

The previously agreed upon scope of representation cannot be expanded without the lawyer’s consent.

Rule 1.2(c)

Question 8

Who decides the means by which to carry out the representation?

Answer 8

The lawyer determines the means by which to carry out the representation.

Rule 1.2(a)

Question 9

What if there is a dspute about the means employed by the lawyer to carry out the representation?

Answer 9

The lawyer must consult with the client regarding the means to be pursued and may even be discharged by the client if there is too fundamental of a disagreement.

Rule 1.2(a)

Question 10

Is a lawyer obligated to raise every non-frivolous issue on appeal if that’s what their client wants?

Answer 10

No.

A lawyer is given discretion to use their professional judgment with respect to what issues to raise on appeal.

Jones v. Barnes, 463 U.S. 745 (1983).

Question 11

What is the rule about diligence?

Answer 11

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

Rule 1.4

Question 12

What is required of the lawyer by the rule about communication?

Answer 12

The lawyer must:

(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.” Rule 1.4(a)(1).

(2) “reasonably consult with the client about the means by which the client’s objectives are to be pursued.” Rule 1.4(a)(2).

(3) “keep the client reasonably informed about the status of the matter.” Rule 1.4(a)(3).

(4) “promptly comply with reasonable request for information.” Rule 1.4(a)(4).

(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.” Rule 1.4(a)(5).

(6) “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Rule 1.4(b).

Rule 1.4(a)(1)-(5), (b)

Question 13

What does it mean that a lawyer must “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”?

Answer 13

You need to talk to your client if anything comes up that requires their informed consent.

Question 14

What does it mean that a lawyer must “reasonably consult with the client about the means by which the client’s objectives are to be pursued”?

Answer 14

You should discuss the methods you’re using to pursue the client’s objectives (e.g., if you’re using Generative AI).

Question 15

What does it mean that a lawyer must “keep the client reasonably informed about the status of the matter”?

Answer 15

You must keep the client informed of any updates to their case (e.g., plea/settlement offers, the outcome of motion hearings, etc.).

Question 16

What does it mean that a lawyer must “promptly comply with reasonable requests for information”?

Answer 16

If the client has reasonable requests for information (e.g., they’re not asking for hourly or daily updates), then you must comply.

Question 17

What does it mean that a lawyer must “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”?

Answer 17

If your client asks you to engage in prohibited conduct, you must speak to them to explain that you, nor any lawyer, can help them in the manner they are requesting.

Question 18

What does it mean that a lawyer must “explain a matter ot the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Answer 18

You must explain what’s going on with the case to the extent that is reasonably necessary for your client to make informed decisions regarding the representation.

Question 19

What are the four types of fee agreements?

Answer 19

(1) Hourly Fee.

(2) Flat Fee (for a particular matter).

(3) Proportional Fee (e.g., a fixed percentage of the total value of a transaction).

(4) Contingency Fee (a fee proportionate to the amount recovered).

Question 20

Can you have a verbal agreement to be paid via contingency fee?

Answer 20

No, contingency fees must be in writing and must state:

(1) the method by which the fee is to be determined (including the percentage or percentages that you’ll get in the event of a settlement, trial, or appeal);

(2) the expenses to be deducted from the recovery

(3) whether the expenses are deducted before or after calculating the percentage

Rule 1.5(c)

Question 21

When are you prohbiited from charging a contingency fee?

Answer 21

You cannot collect a contingency fee when it is for:

(1) a domestic relations matter (e.g., securing a divorce, alimony, child support, or property in lieu thereof) or

(2) representing a defendant in a criminal case.

Question 22

Are you required to put fee agreements, besides contingency, in writing?

Answer 22

No, but it is advisable.

Question 23

When must fee arrangements become fee agreements?

Answer 23

Fee arrangements must become fee agreements before or within a reasonable period after the representation commences.

Rule 1.5(b)

Question 24

Are there any exceptions to the requirement for fee arrangements to be agreed to before or within a reasonable period after the representation commences?

Answer 24

Agreement isn’t really needed when you charge a regularly represented client on the same basis or rate that you’ve always charged them.

If you make any changes to the basis or rate or expenses, then that does need to be communicated though.

1.5(b)

Question 25

Do fees need to be reasonable?

Answer 25

You cannot charge or collect unreasonable fees.

Rule 1.5(a)

Question 26

How do we determine the reasonableness of fees?

Answer 26

We apply a factor test with the following factors:

• The extent of the work involved (including considerations of time, labor, novelty, difficulty, etc.).
• The adverse effect on the lawyer’s other work
• The fee customarily charged in that locality
• The dollar amount involved in the matter, and the result obtained
• The time limitations imposed by the client or other circumstances
• The nature and length of the lawyer’s professional relationship with the client
• The stature of the lawyer
• Whether the fee is fixed or contingent

Question 27

What are the three requirements for a third party to be permitted to pay legal fees for the client?

Answer 27

(1) the client must consent after consultation with the lawyer.

(2) The payment of compensation by the third party must not interfere with the lawyer’s independence or compromise the lawyer-client relationship in any way.

(3) the lawyer must maintain the client’s confidences pursuant to Rule 1.6.

Question 28

Can lawyers acquire a proprietary interest in a cause of action or subject matter of litigation that the lawyer is conducting for a client?

Answer 28

No.

Question 29

Are there any exceptions to the prohibition against lawyers acquiring a proprietary interest in a cause of action or subject matter of litigation that the lawyer is conducting for a client?

Answer 29

There are two exceptions:

(1) A lawyer may acquire a lien granted by law to secure their fee or expenses and

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