Essay rule statements Flashcards
General rule for conflicts of interest
Generally, a lawyer must not represent a client if the representation of that client will be directly adverse to another client or the representation of one or more clients may be materially limited by the lawyer’s responsibilities to another client, unless
(i) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client,
(ii) the representation is not prohibited by law,
(iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding, and
(iv) each affected client gives informed consent, confirmed in writing.
Representing opposing parties in the same lawsuit or transaction is prohibited.
Informed Consent
“Informed consent” means the agreement of the client to the proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.
Ex parte communications
Ex parte communications are those made without the opposing party or his lawyer present.
Under the Rules of Professional Conduct, a lawyer must not communicate ex parte with a judge except (i) in the course of official proceedings, (ii) in writing, with a copy provided simultaneously to the opposing party, (iii) orally, with adequate notice to the other party, or (iv) as otherwise permitted by law.
Because ex parte communications negatively impact the adverse party’s right to be heard and to be represented by counsel, reliance on the “permitted by law” exception to the prohibition against ex parte communication is limited to situations when a statute or case law specifically and clearly authorizes such communication.
What is advertising
Advertising refers to widely distributed public statements about the services available from a lawyer or law firm.
Lawyer advertising has been recognized by the U.S. Supreme Court as commercial speech that is protected by the 1st and 14th Amendments.
Though states cannot ban all lawyer advertising, they can and do regulate it
General rule for advertisign
North Carolina’s restrictions are set forth in the Rules of Professional Conduct.
A lawyer must not make a false or misleading communication about the lawyer or the lawyer’s services.
As long as the advertisement used is not false or misleading, and includes the name and office address of at least one lawyer or law firm responsible for its content, a lawyer may advertise services through written, recorded, or electronic communication, including public media.
Referral service for advertising
Though a lawyer cannot give anything of value to a person for recommending the lawyer’s services, a lawyer may participate in a lawyer referral service under conditions that meet certain requirements.
Those requirements include, but are not limited to, the following: (i) the lawyer is professionally responsible for the referral service’s operation, (ii) the referral service cannot be operated for a profit, (iii) the fee the lawyer pays to the referral service must represent a proportionate share of the referral service’s administrative and advertising costs, (iv) employees of the referral service do not initiate contact with prospective clients, and (v) all referral service ads state that it provides a list of all participating lawyers to the public at no cost upon request and explain the method used to align a client’s needs with a recommended lawyer.
Certification as a specialist
Additionally, a lawyer must not state or imply that the lawyer is certified as a specialist in a field of practice unless (i) he has certification granted by the North Carolina State Bar or an organization accredited by the North Carolina State Bar or the ABA under criteria endorsed by the North Carolina Bar, and (ii) he clearly provides the name of the certifying organization in the communication.
Contingent fee in domestic dispute
A lawyer is prohibited from entering into an agreement for a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support to be obtained.
Under the Rules of Professional Conduct, a lawyer may only enter into a contingent fee arrangement in a domestic relations matter if the matter involves past due amounts that have already been determined and secured by judgment.
In North Carolina, a spouse must file for equitable distribution before the divorce decree is entered.
Fee splitting between lawyers
Under the Rules of Professional Conduct, a division of fee between lawyers who are not members of the same law firm is permitted if the division is in proportion to the services performed by each lawyer or if each lawyer assumes responsibility for the representation as a whole.
In either event, the client must agree to the arrangement, including the share each lawyer is to receive, and the agreement must be confirmed in writing.
Finally, the total fee must be reasonable.
Settlement of a matter
The Rules of Professional Conduct specifically allocate authority to decide whether to settle a matter to the client.
Under the Rules, a lawyer must abide by the client’s decision whether to settle and must communicate all bona fide offers of settlement to the client.
The final decision whether to accept any offer rests with the client.
Fee Dispute
A lawyer who has a dispute with a client over the fee for the lawyer’s services must (i) make reasonable efforts to advise the client about North Carolina State Bar’s program of fee dispute resolution at least 30 days prior to initiating legal proceedings to collect the disputed fee, and (ii) participate in good faith in the fee dispute resolution process if the client submits a proper request.
Thus, under the Rules, the attorney must advise the client of the fee dispute resolution program before filing an action to collect a disputed fee.
Withdrawal of attorney representation
A lawyer may withdraw from representing a client if withdrawal can be accomplished without a material adverse effect on the interests of the client. The withdrawing lawyer must take steps to minimize harm to the clients, and he must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.
The firm, however, must (i) give reasonable notice to and allow time for employment of other counsel, (ii) return all papers and property to which the client is entitled, (iii) continue to protect any confidential information and (iv) refund any advance payment of a fee or expense that has not been earned.
Trust funds
The first issue concerns whether and when an attorney can ethically deposit personal funds into a trust account.
“Trust funds” are funds belonging to someone other than the lawyer that are received by or placed under the control of the lawyer in connection with the performance of legal services.
A lawyer must hold entrusted property separate from his own property and violates the Rules by commingling or misappropriating funds.
No funds belonging to the lawyer shall be deposited or retained in a trust account except (i) funds sufficient to open or maintain an account, pay any bank service charges, or pay any tax on the account, and (ii) funds belonging in part to a client and in part to the lawyer.
Further, a lawyer may not use trust account funds to obtain a personal benefit.
