Important rules Flashcards
Competence
Competent Representation = knowledge, skill, thoroughness, and preparation reasonably necessary (must keep abreast of changes in the law)
Criminal activity
1) Lawyer cannot counsel a client to engage, or assist, in conduct the lawyer knows to be criminal or fraudulent
2) A lawyer may discuss legal consequences of a proposed course of conduct
Factors for determining fees
Factors determining reasonable fees:
1) Time and Labor
2) Opportunity cost to lawyer
3) Fee typical for similar services, in similar location
4) Results obtained
5) Time limitations
6) Length of relationship btwn lawyer/client
7) Experience and reputation of lawyer
8) Type of fee, fixed or contingent
Contingent fees
1) Must be in writing and signed by client
2) Must clearly define any expenses the client is responsible for
3) Are prohibited for Criminal and Domestic cases
Fee spliting
1) Cannot be between lawyers of the same firm
2) Only if reasonable and division is proportional to service
3) Client must agree in writing
Confidentiality
A lawyer cannot reveal information relating to the representation of a client without informed consent
EXCEPTIONS: a lawyer may reveal information to the extent the lawyer reasonably believes necessary to:
1) Prevent Death or Serious Bodily Harm
2) Prevent Crimes or Fraud
(where substantial injury to financial interests or property is reasonably certain)
3) Prevent, Mitigate, or Rectify Substantial Financial Injury
4) Securing Legal Advice
(such as to assure compliance with MRPC)
5) Self Defense
(for claims against the lawyer by the client)
6) Compliance with Law
(court orders)
Conflicts of interest
Occurs if
1) representation would be directly adverse to another client OR
2) significant risk of materially limited representation
Remedy by
Withdrawing
Exception where
1) Reasonable belief the lawyer can provide competent and diligent representation
2) Not prohibited by law
3) Not client 1 v. client 2 AND
4) Both clients give informed consent in writing (can be revoked at any time, not necessary for unnamed members of a class action)
Conflict of interest: business transaction
A lawyer shall not
1) enter into a business transaction w/ a client OR
2) knowingly acquire an ownership interest adverse to the client
UNLESS
1) fair and reasonable terms
2) client is advised in writing and given opportunity to seek advice of independent legal counsel
3) client gives informed consent in writing
Does not apply to standard commercial transactions where the lawyer has no advantage in dealing w/ the client
Duties to former clients
1) Shall not represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client, UNLESS, former client gives informed, written consent
2) Shall not represent another person in the same or substantially related matter, where the lawyer’s firm has previously represented a client and the new client’s interests are materially adverse to the former client AND the lawyer has obtained material information that is either protected by confidentiality and/or can be used to the disadvantage of the former client
(a) The firm whose disqualification is sought must show the lawyer was not privy to the information (screened)
(b) Should not unreasonably hamper lawyers ability to change firms OR client’s ability to change counsel
3) Shall not use information relating to the representation to the disadvantage of the former client, unless information has become generally known
Client with diminished capacity
1) If capacity to adequately consider decisions is diminished lawyer must try to maintain a normal lawyer-client relationship
2) If reasonably believe the client is at risk of substantial physical or financial harm, he may take reasonable protective action, including
(a) consulting with family members
(b) using surrogate decision making tools (e.g. power of attorney) OR
(c) consulting w/ support groups, professional services, adult-protective agencies, or other entities capable of protecting client
Termination
A lawyer is disqualified or must withdraw if…
1) representation violates these rules or other law
2) lawyer’s physical condition materially impairs ability to represent the client, OR
3) lawyer is fired
Termination: lawyer desire
A lawyer may withdraw from representation if
1) No material adverse effect to client’s interests
2) Client persists in conduct the lawyer reasonably believes is criminal or fraudulent
3) Client insists on taking action the lawyer finds repugnant or has a fundamental disagreement
4) Client fails to fulfill an obligation to the lawyer regarding his services and has been given reasonable warning
5) Representation will result in an unreasonable financial burden to the lawyer
(must reasonably protect client’s interests, give notice and time to find new counsel, and provide papers to client)
Duties of supervisor
1) Shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct
2) A lawyer shall be responsible for another’s violation IF
(a) the lawyer orders or, w/ knowledge of the specific conduct, ratifies the conduct OR
(b) the lawyer is a partner or has authority and knows of the conduct when its consequences can be avoided or mitigated but fails to take action
Advertising
1) A lawyer may advertise services through written, recorded, or electronic communication.
2) Must include the name and address of at least one lawyer responsible for the content
3) A lawyer may pay publicists,PR people, business development staff, and website designers
4) May not give anything of value to a person for recommending the lawyer’s services EXCEPT
(a) to pay reasonable costs of ads
(b) to pay for a law practice
(c) in referral agreements w/ a non lawyer where the agreement is non-exclusive and the client is informed of the referral agreement
5) Referral arrangements should be reviewed periodically and are subject to the rules against false/misleading communications
Direct contact with prospective client
A lawyer may not
1) in person, live telephone, or real time electronic contact, solicit employment from a prospect when a significant motive is the lawyer’s pecuniary gain UNLESS the person contacted is
(a) also a lawyer OR
(b) has a family or close personal/professional relationship
2) even if a lawyer or family member/close relationship, no communication is allowed IF
(a) prospect makes it known that he does not not want the solicitation OR
(b) involves coercion, duress, or harassment
