Professional Responsibility Flashcards
The Georgia Rules of Professional Conduct (RPC) are modeled on the format of the American Bar Association’s (ABA’s) Model Rules of Professional Conduct, but they contain some substantive differences.
What type of requirements does the State impose upon candidates for legal licensure?
States impose educational, knowledge, and character requirements on applicants for admission to the practice of law.
What is the educational requirement to join the bar?
Georgia requires graduation from an ABA-accredited law school for admission to practice. Ga. R. Gov’g Admis. Prac. Law B § 4(b)(1).
What is the examination require for bar membership?
Applicants must also pass a written exam. Ga. R. Gov’g Admis. Prac. Law B §§6, 8, 14. The examination requirement may be waived if a person is a member in good standing of a bar association in another state that has reciprocity with Georgia and if he is otherwise qualified. The requirement that a person is qualified includes that for at least five of the seven years immediately before applying for admission to the bar, the applicant was practicing law, teaching law, or was a judge. Ga. R. Gov’g Admis. Prac. Law C §§ 2, 3.
Describe pro hac vice?
A lawyer licensed to practice in one state who wants to represent a client before a court in another state may file a motion for admission to practice pro hac vice (“for this turn only”). Granting a right to appear pro hac vice is within the discretion of the jurisdiction and the presiding judge. See Ga. Unif. Super. Ct.4.4.
What is “prohibited behavior” for bar exam application process?
i) Knowingly making a false statement of material fact in connection with the application; ii) Failing to disclose a fact necessary to correct a misapprehension known to have arisen in the matter; or iii) Failing to respond to a lawful demand by an admissions authority in connection with the application (unless the fact is protected by the rules governing confidential communications). RPC 8.1.
May an applicant refuse to provide an unprivileged answer?
An applicant may refuse to provide unprivileged answers to questions having substantial relevance to qualifications to uphold the law. This is as a result of the applicant’s Fifth Amendment privilege. If an applicant is not answering a question as a result of invocation of this privilege, then the RPC requires that he include this information in his answer. RPC 8.1, cmt. 2.
What effect can violating a rule of professional conduct have for an applicant?
Violation of any of these provisions may prevent admission. A previously admitted applicant may be subject to discipline for violating any provision.
What is the “unauthorized practice of law”?
A lawyer is subject to discipline for practicing in a jurisdiction in which he is not admitted. Lawyers are also obligated to ensure that only authorized persons engage in the practice of law and are subject to discipline for assisting non-lawyers in the unlicensed practice of law. RPC 5.5.
What are the exception from the rule prohibiting the unauthorized practice of law?
1) Pro hac vice 2) In association with a local lawyer
What are ground for misconduct?
(1) Violate or attempt to violate any of the RPC, knowingly assist or induce another to do so, or do so through the acts of another; (2) Be convicted of a felony; (3) Be convicted of a misdemeanor involving moral turpitude when the underlying conduct relates to the lawyer’s fitness to practice law; (4) Engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation; (5) Fail to pay any final judgment rendered against the lawyer for money collected by him as a lawyer within 10 days after the time appointed in the order or judgment; (6) State or imply an ability to influence improperly a government agency or official; state an ability to achieve results by means that violate the RPC or other law; achieve results by means that violate the RPC or other law; (7) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (8) Commit a criminal act that relates to the lawyer’s fitness to practice law or reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, when the lawyer has admitted the act in court. RPC 8.4.
When is a lawyer responsible for the misconduct committed by others?
A lawyer is subject to discipline for misconduct committed by another lawyer if the lawyer: (1) Orders the misconduct; (2) Ratifies the misconduct with knowledge of the specific conduct; or (3) As a partner in a law firm, a manager, or a lawyer with direct supervisory authority over another lawyer, knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RPC 5.1(c).
Who is a “partner”?
A “partner” is a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. RPC 1.0(l). A lawyer who has supervisory authority in a corporate enterprise or government agency is also considered a partner for the purposes of RPC 5.1.
What must a law partner do to ensure their firm is conforming to the RPC?
Partners in a law firm must make reasonable efforts to ensure that the firm has measures in place that give reasonable assurance that all lawyers in the firm conform to the RPC and that the conduct of all non-lawyers working for the firm conforms to the RPC. RPC 5.1(a). The definition of “reasonable measures” depends on the size and kind of firm. RPC 5.1, cmt. 3.
When are lawyer’s punished for the conduct of non-lawyers?
Partners may be subject to discipline for ratifying conduct by a non-lawyer if the conduct would have violated the disciplinary rules if it had been engaged in by a lawyer. RPC 5.3(c).
What responsibilities are associated with direct supervision?
A lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the RPC. RPC 5.1(b) and 5.3(c).
What responsibilities are associated with being a subordinate lawyer?
A subordinate lawyer must conform to the RPC even if acting under the direction of a supervising lawyer. The subordinate lawyer does not violate the rules, however, if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty. RPC 5.2.
Can one state bar discipline a lawyer for misconduct conducted in another state?
A lawyer is subject to discipline for misconduct in any state or jurisdiction in which the lawyer is admitted to practice, even if the misconduct occurred outside of that state or jurisdiction. RPC 8.5.
Must a lawyer report misconduct by another lawyer?
A lawyer must report misconduct by another lawyer to the appropriate professional authority (e.g., disciplinary agency) when the lawyer has actual knowledge of the misconduct. The duty to report is limited to matters that raise a substantial question as to the lawyer’s honesty or professional fitness. RPC 8.3. In Georgia, there is no disciplinary penalty for a violation of this rule.
What conduct must a lawyer self-report?
Members of the State Bar of Georgia must notify the bar within 60 days of: (1) Being admitted to practice law in another jurisdiction, with the dates of admission; (2) Being convicted of any felony or a misdemeanor involving moral turpitude when the underlying conduct relates to the lawyer’s fitness to practice law; or (3) Being disciplined by any jurisdiction other than the Supreme Court of Georgia. RPC 9.1(a).
What is a “law firm”?
A “law firm” is a lawyer or lawyers in a partnership, professional corporation, sole proprietorship, or other association authorized to practice law, or lawyers employed in a legal services organization or the legal department of a corporation or other organization. RPC 1.0(e).
May partners “fee splint” within a firm?
By agreement, attorneys in the same firm may legitimately share or split fees earned by any of them. RPC 1.5.
How does the RPC limit partnerships?
A lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. RPC 5.4(b).
May lawyer’s practice as a professional corporation?
A lawyer is not permitted to practice with or in the form of a professional corporation or association authorized to practice law for a profit if: (1) A non-lawyer owns any interest in the firm (except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during the administration of his estate); (2) A non-lawyer is a corporate director or officer thereof; or (3) A non-lawyer has the right to direct or control the professional judgment of a lawyer. RPC 5.4(d).
What are “law-related services”?
Law-related services include providing title insurance, financial planning, accounting, trust services, real-estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting.
May lawyers provide “law-related services”?
Lawyers may provide “law-related services,” defined by the RPC as services that might reasonably be performed in conjunction with and related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non-lawyer. RPC 5.7(b).
Are lawyers under the RPC when they provide law related services?
Under certain circumstances, the lawyer providing law-related services will be subject to the RPC even though a non-lawyer performing such services would not. The maximum penalty for violating this rule is a public reprimand. RPC 5.7.
Are “law-related services” distinct from legal services?
A lawyer will be subject to the RPC with respect to the provision of law-related services if the lawyer provides services in circumstances that are not distinct from the lawyer’s provision of legal services to clients. RPC5.7(a)(1).
What actions must a lawyer take to prevent the RPC from applying to law-related services?
A lawyer will be subject to the RPC for provision of law-related services by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to ensure that the client knows that the services are not legal services and that the protections of the lawyer-client relationship do not apply. RPC 5.7(a)(2).
Who must show what in order to prove “reasonable measures” were taken to ensure client understood law-related services are not legal services?
The lawyer has the burden to show that reasonable measures were taken under the circumstances to communicate the desired understanding. Thus, a sophisticated user of law?related services, such as a publicly held corporation, may require less explanation than someone unfamiliar with distinctions between legal services and law-related services.
Under what conditions may a lawyer or law firm sell or purchase a law practice?
(1) Written notice is given to all current clients regarding: - The proposed sale; - The terms of any proposed change in the fee arrangement; - The client’s right to retain other counsel or to take possession of the file; and - The fact that the client’s consent to the new representation will be presumed if the client does not take any action or does not otherwise object within 90 days of receipt of the notice; and (2) The entire practice is sold to another lawyer or law firm. RPC 1.17.
Must a lawyer sell his or her entire practice?
A lawyer must sell her entire practice (not entire firm, but entire practice).
What is the seller obligation to his or her clients regarding the purchaser?
The seller is obligated to exercise competence in identifying a purchaser qualified to assume the practice. This rule is also applicable to the sale of a practice by representatives of a deceased, disabled, or disappeared lawyer.
If a lawyer cannot give a client proper notice, then can the attorney presume the attorney-client relationship has ended?
No. If the client cannot be given notice, then the representation of that client may be transferred to the purchaser only by an order of a court of competent jurisdiction authorizing the transfer. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer. RPC 1.17(c).
Can an attorney who purchases a law practice or law firm amend the fees previously charged due to the purchase?
No. The fees charged to a client may not be increased by the sale. RPC 1.17(d).
What employment term can a lawyer not agree to?
A lawyer must not participate in a partnership or employment agreement that restricts the lawyer’s right to practice after the relationship terminates, except for an agreement that concerns benefits upon retirement. RPC 5.6(a).
What term regarding the representing attorney cannot be included in a settlement agreement
A lawyer must not make or offer an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties. RPC 5.6(b). This rule prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.
What is “professional discipline”?
Professional discipline is a penalty imposed on a lawyer by the State Bar of Georgia Disciplinary Board for violating a rule of professional responsibility (i.e., the RPC).
What is the most common order of events for a professional discipline investigation?
(1) An aggrieved client (or anyone else with knowledge) files with the state disciplinary authority a professional compliant. (2) The state disciplinary authority assembles a “grievance committee” to investigate the complaint. (3) If the committee finds merit to the charges, it holds a hearing limited to the charges brought in the compliant. - The accused attorney is notified, allowed private counsel, and is given opportunity to be heard. The accused attorney may present evidence and cross-examine witnesses. - The burden of proof is on the prosecuting attorney. (4) If the committee finds against the accused attorney, it recommends appropriate sanctions. The Supreme Court of Georgia makes the final determination. (5) The aggrieved attorney may appeal the committee’s decision to the Supreme Court of Georgia. Ga. R. & Regs. St. Bar 4-208.3 – 4.208.4.
What are a few common sanctions placed by the Supreme Court of Georgia in Professional discipline actions against accused attorneys?
• Private censure in the form of a formal admonition • Private censure in the form of an investigative panel reprimand • Public censure in the form of a review panel reprimand • Public reprimand • Suspension from practice • Disbarment
May a lawyer require by contract to limit a clients ability to file a disciplinary complaint?
Lawyers may not enter an agreement containing a condition that prohibits or restricts a person from filing a disciplinary complaint, or that requires the person to request a dismissal of a pending disciplinary complaint. RPC 9.2.
Will violating a RPC automatically result in a finding of malpractice?
Mere violation of a Rule of Professional Conduct will not automatically result in a finding of malpractice. It is not negligence per se.
How are RPC violations treated in a malpractice lawsuit?
Violation of a rule is generally treated as evidence that the lawyer’s conduct violated the duty of care. Allen v. Lefkoff, Duncan, Grimes & Dermer P.C., 453 S.E.2d 719, 720–21 (1995).
What are the most common legal malpractice theories?
• Breach of contract for not fulfilling a duty • Intentional tort • Negligence
How may a lawyer commit legal malpractice due to breaching a contract?
A lawyer can be found liable for malpractice for breaching an express or implied agreement with a client.
How may a lawyer commit legal malpractice as an intentional tort?
A lawyer may be liable for malpractice for intentional torts, including fraud, malicious prosecution, and abuse of process.
What are the elements of for asserting negligent practice of law?
(1) Breach of a duty of care (2) Causation (3) Actual damages
What duty does an attorney owe to his or her clients?
A lawyer owes a duty of care to the client to exercise the competence and diligence of lawyers of similar experience under similar conditions. See, e.g., Allen v. Lefkoff, Duncan, Grimes & Dermer P.C., 453 S.E.2d 719, 720 (1995). When a lawyer represents to the client that he has specialized expertise, the lawyer will be held to the standard of care of a specialist.
What must accompany complains for legal malpractice?
Like other professional negligence cases in Georgia, complaints for legal malpractice must be accompanied by an affidavit from an expert specifying at least one negligent act. O.C.G.A. § 9-11-9.1. Generally, an expert must also explain to the jury the standard of care expected in Georgia and whether the lawyer’s act that injured the client was a deviation from that standard.
How does a client establish causation in a legal malpractice lawsuit?
The client must establish that, but for the lawyer’s breach, the client’s injury would not have occurred, and that it is reasonable to hold the lawyer responsible for the injury caused. An adverse result is a condition precedent to an action for legal malpractice in Georgia. Tante v. Herring, 453 S.E.2d 686, 687 (Ga. 1994).
What type of damages are necessary for a legal malpractice case, and what other limitations as to damages are placed upon potential claimants?
The client must demonstrate actual damages, such as money lost as a result of losing the case due to the lawyer’s actions. Accordingly, the client may not bring a malpractice action while the underlying action is still pending, as the case may ultimately resolve in the client’s favor. Tante v. Herring, 453 S.E.2d 686, 687 (Ga. 1994).
May a lawyer be held liable for damages caused by another lawyer?
A lawyer may be held liable for damages caused by another lawyer working under the lawyer or by a non-lawyer employee under the lawyer’s supervision. The employee’s actions must have been within the scope of her employment. RPC 5.1 and 5.3.
May a client, by contract, limit the amount he or she could recovered against an attorney for legal malpractice?
A lawyer may not enter into an agreement with a client prospectively limiting malpractice liability to the client, unless an independent lawyer represented the client in making the agreement. RPC 1.8(h).
May a lawyer and client settle a malpractice claim?
A lawyer may not settle a claim or potential claim for malpractice liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking independent legal counsel with regard to the settlement and is given a reasonable opportunity to seek such advice. RPC 1.8(h).
What effect does “breach of a fiduciary duty” have on a legal malpractice lawsuit?
In Georgia, a lawyer’s breach of his fiduciary duty gives rise to independent cause of action separate from legal malpractice. See, e.g., Tante v Herring, 453 S.E.2d 686, 687–88 (Ga. 1994).
What is the duty of acceptance, generally?
In general, a lawyer is not under a duty to accept representation of any client. RPC6.2, cmt. 1.
What is the exception to the duty of acceptance?
A lawyer may avoid court appointments only when good cause exists to decline. RPC 6.2. Good cause to decline representation exists if: • The lawyer could not handle the matter competently; • The representation would result in an improper conflict of interest (e.g., when the client or the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relationship or the lawyer’s ability to represent the client); or • Acceptance would be unreasonably burdensome (e.g., when it would impose a financial sacrifice so great as to be unjust). RPC 6.2, cmt. 2.
What attorney-client relationship distinctions, if any, do court-appointed lawyers have from retained counsel?
An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality. An appointed lawyer is subject to the same limitations on the lawyer-client relationship, such as the obligation to refrain from assisting the client in violation of the RPC. RPC 6.2, cmt. 3.
What occurs once a lawyer undertakes representation?
Once a lawyer undertakes representation, the full range of obligations and duties to a client, discussed as follows, exists. At that point, the lawyer is both a fiduciary and an agent of the client.
When does the lawyer-client relationship begin?
The lawyer-client relationship begins when the client reasonably believes that the relationship exists.
What is a “reasonable belief” (as to lawyer-client relationship)?
A reasonable belief is one that is reasonably induced by the attorney’s representations or conduct. No formal writing or agreement is required. Calhoun v. Tapley, 395 S.E.2d 848, 849 (Ga. App. 1990).
What is a lawyer’s duty to reject?
A lawyer has a duty to reject representation when doing so would violate a rule of ethics or law, or when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. RPC 1.16(a)(1), (2). A lawyer should not accept representation in a matter unless she can perform it competently, promptly, without improper conflict of interest, and to completion.
What is “advertising”
“Advertising” refers to widely distributed, public statements about the services available from a lawyer or law firm (such as phone book listings, newspaper or television ads, and websites).
Is advertising allowed?
Advertising is generally allowed, subject to the following rules. RPC 7.2.
What is the fundamental rule regarding advertising law firms or lawyers?
A lawyer must not make false or misleading statements about the lawyer or her services. RPC 7.1. A lawyer must not imply that previous favorable results indicate a likelihood of future favorable results, e.g., advertising the lawyer’s record of favorable verdicts or the amount of a damage award without reference to the specific factual and legal circumstances. RPC 7.1 cmt. 2.
How do you determine a communication is misleading (as an advertisement for a law firm)?
A communication is misleading if it: • Contains a material misrepresentation of law or fact or omits a fact necessary to make the statement as a whole not materially misleading, • Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the RPC or other law, • Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated, • Fails to include the name of at least one lawyer responsible for its content, or • Contains any language regarding contingency fees without disclaimer language specified by Rule7.1(a)(5). RPC 7.1.
Are lawyers allowed to advertise they practice a particular field?
Lawyers are permitted to communicate the fact that they practice in particular fields of law. A lawyer may hold herself out publicly as a specialist in a particular field by experience, specialized training or education, or certification by a recognized and bona fide professional entity, but only if such information is true and not misleading. RPC 7.4.
What information is required to satisfy the “prominent disclosure” requirement?
Any advertisement directed to potential clients in Georgia or intending to solicit delivery of legal services to be performed in Georgia must include “prominent disclosure” of the following: • The name, physical location, and telephone number of each lawyer or law firm who paid for the advertisement and who takes full personal responsibility for the advertisement (lawyers using a referral service should ensure that the service discloses the lawyer’s address when a referral is made); • If applicable, the fact that the lawyer or law firm will refer the majority of callers to other attorneys; • The use of any non-lawyer spokesperson; portrayal of a lawyer or client by a non-lawyer or non-client; or paid testimonial or endorsement; • A written statement clearly describing the scope of any advertised fixed fee; and • An explanation that the advertisement is an advertisement, if it resembles a pleading, notice, or other legal document. RPC 7.2(c).
How is “prominent disclosure” defined (as written or as spoken)?
A “prominent disclosure” is clearly legible and capable of being read by the average person, if written. If spoken aloud, it must be clearly intelligible by an average person. RPC 7.2(c).
What is the record keeping requirement for legal advertisements?
Georgia requires the lawyer to retain a copy of any advertisement, including the text of broadcast advertisements, for two years after its last dissemination. This includes retaining a record of when and where the advertisement was used. RPC 7.2(b).
Are firm names and letterhead considered under the advertising rules?
A lawyer may not use a firm name, letterhead, or other professional designation that is misleading.
What are the specific rules regarding only a firm’s name?
A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of RPC 7.1., and it includes the name of at least one lawyer practicing under the name. A law firm consisting solely of the names of dead or retired partners does not have to include the name of an active partner. RPC 7.5(e).
What requirements apply to law firms operating in more than one jurisdiction?
A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. RPC 7.5(b).
What requirements are placed on lawyers who also serve in public office?
The name of a lawyer holding a public office must not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. RPC7.5(c).
What are limits on statements regarding partnerships?
Lawyers may not state or imply that they practice in a partnership or other organization unless they actually do. RPC 7.5(d).
Does “direct contact” include communications through an intermediary or through telephone conversations?
Direct contact includes direct personal contact through an intermediary and live contact by phone. RPC 7.3, cmt.2.
What are the rules regarding solicitation?
A lawyer shall not solicit professional employment as a private practitioner through direct personal contact or live telephone contact with a potential client who has not sought advice regarding employment of a lawyer. RPC 7.3(d).
What written communications are prohibited?
Written communications to prospective clients for the purposes of obtaining professional employment are prohibited if: • It has been made known to the lawyer that the person does not want to receive communications from the lawyer; • The communications involve coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; • The communications concern personal-injury or wrongful-death actions or otherwise relate to an accident or disaster involving the person receiving the communications or her relative, within 30 days of the occurrence; or • The lawyer knows or reasonably should know that the physical, emotional, or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer. RPC 7.3(a).
What are permissible written communications?
Written communications to prospective clients, other than to a close friend, relative, former client, or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment, must be marked “Advertisement” on the face of the envelope and at the top of each page in a type size no smaller than the largest used in the body of the letter. RPC 7.3(b).
What is required if a lawyer or law firm primarily refers clients to other attorneys?
Lawyers or law firms who primarily refer callers to other attorneys must disclose that information. RPC 7.2(c)(2).
May lawyers hire a referral service?
Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline. RPC 7.3(c). Use of a state-bar-authorized lawyer referral service, legal insurance, a prepaid legal service plan, or a pro bono network is not subject to this prohibition.
What is a “reasonable fee” for legal services?
Lawyer fees are regulated for reasonableness based on the amount and nature of the fees. All rate or fee arrangements must be communicated to the client before or within a reasonable time after the relationship commences unless the lawyer and client already have an established professional relationship and the lawyer will be charging the client based on the same rate. RPC 1.5.
Must all legal fee arrangement be in writing?
No. Only contingent-fee arrangements must be in writing.
What factors are considered to determine whether a legal fee is reasonable?
• Difficulty of the case • Preclusion of other employment • Fee charged locally • The desired result • Time • Relationship with the client • Expertise of the attorney • The fee arrangement
What facts reflect the difficult of the case?
Factors reflecting the difficulty of the case include the time, labor, and skill necessary to perform the services, as well as the novelty of the case, the time limitations imposed by the client, or the specific circumstances surrounding the case.
When may an attorney charge a contingency fee?
Attorneys may charge a fee contingent on the outcome of the case. A lawyer may not charge a fee in a domestic relations case that is contingent on obtaining a divorce or on the amount of support recovered, nor may a lawyer charge a contingent fee for representing a defendant in a criminal case. RPC 1.5(d).
What must be included in a contingent fee arrangement?
A contingent-fee arrangement must be in writing and must include: • A statement describing the method used for determining the fee; • Whether and which litigation and other expenses are to be deducted from the recovery; and • Whether such expenses are to be deducted before or after the contingent fee is calculated. RPC 1.5(c)(1). The agreement must clearly outline any expenses for which the client will be liable whether or not the client is the prevailing party.
What must a lawyer due at the conclusion of a contingent fee matter?
At the conclusion of a contingent-fee matter, the lawyer must provide the client with a written statement explaining the outcome of the matter. If the client has prevailed and recovered damages, then the statement must include the amount paid to the client and the method used to determine that amount. Finally, if the attorney’s fee was divided with another attorney in a different firm, the amount received by each and the method for determining those amounts must be included. RPC 1.5(c)(2).
May an attorney request payment in advance?
A lawyer may require payment in advance of services rendered as long as the lawyer returns any unearned portion at the time the representation terminates. RPC 1.5, cmt. 4; 1.16(d).
May an attorney request property as payment?
Property is an acceptable form of payment as long as it is not in the form of a proprietary interest in the cause of action or subject matter of the litigation and is in compliance with RPC 1.8 for business transactions with clients. RPC 1.5, cmt. 4.
May a client contract for “limited” legal services?
A lawyer may not enter into an agreement under which services are to be provided only up to a stated amount when it is foreseeable that more extensive services will likely be required,\ unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. RPC 1.5, cmt. 5.
May lawyers within the same firm split fees?
Lawyers in the same law firm, by agreement, may legitimately share or split fees earned by any of them. Fees may be shared with an attorney who has retired.
May lawyer from different firms split fees?
Fee splitting among attorneys at different firms is permitted if all of the following conditions are met: • The fee is in proportion to the services rendered by each lawyer or, by written agreement with the client, all lawyers assume joint responsibility for the representation; • The client is advised of the fee-splitting arrangement and does not object to the participation of the lawyers involved; and • The total fee charged must be reasonable (such that a client is not charged a higher fee because additional lawyers are working on the case). If all of these requirements are met, then the lawyers may submit one bill to the client and then divide the fee. RPC 1.5(e).
May an attorney receive a referral fee?
Generally, a lawyer must not compensate a person or an organization for recommending his or her services.
When can a Bar-operated nonprofit lawyer-referral service collect referral fees?
A lawyer may pay reasonable fees, including fees calculated as a percentage of the legal fees earned by the lawyer, to a bar-operated, nonprofit referral service if that service: • Operates in the public interest; • Files annually with the state’s disciplinary board a report showing its rules, its subscription charges, its agreements with counsel, the number of lawyers participating, and the names and addresses of the participating lawyers; • Is sponsored by a bar association that is open to all lawyers licensed and eligible to practice in the state who maintain an office in the geographical area served and who meet reasonable objectively determinable experience requirements set by the bar association; • Does not charge fees that, when combined with those of the lawyer, are higher than the client would have paid had no service been involved; • Requires any lawyer who is a member of the service to maintain a policy of errors and omissions insurance of no less than $100,000 per occurrence and $300,000 in the aggregate. RPC 7.3(c)(2).
When can lawyer-referral services (other than Bar-operated nonprofits) collect referral fees?
A lawyer may pay dues to a lawyer-referral service operated by an organization authorized by law, provided that the organization has filed with the state’s disciplinary board a report showing its terms, its subscription charges, its agreements with counsel, the number of participating lawyers, and the names and addresses of participating lawyers. RPC 7.3(c)(1).
When may former partners collect fees?
Pursuant to a profit-sharing or retirement plan within a firm, former partners and associates of the primary lawyer may share in the fees.
When may non-attorney’s collect fees?
Fees may not be shared and a partnership may not be made with non-lawyers if any of the activities include the practice of law.
What are the exceptions tot he general rule regarding splitting fees with non-lawyers?
(1) Fees are paid into a lawyer’s estate or to one or more specified persons over a reasonable period as a death benefit according to the firm’s operating agreement; (2) A lawyer who purchases the practice of a deceased, disabled, or missing lawyer pays the agreed-upon purchase price to the estate or other representative of that lawyer; (3) A lawyer undertakes to complete the unfinished legal business of a deceased, retired, disabled, or suspended lawyer; (4) Fees are shared with law firm lay personnel through a compensation or retirement plan, even though it is based on a profit-sharing arrangement; and (5) A lawyer pays a referral fee to a bar-operated, nonprofit referral organization, even when such fee is calculated as a percentage of legal fees earned by the lawyer. RPC 5.4(a).
What is the general rule regarding retainers?
A retainer may only be withdrawn as it is earned. Until that point, the funds are considered the client’s property and must be kept in trust, separate from all other monies. RPC 1.15(II). These trust accounts must be maintained in an approved financial institution in Georgia or the state where the lawyer’s office is located. RPC 1.15(III).
What duty is owed to the client regarding retainers?
A lawyer should hold the property of others with the care required of a professional fiduciary.
What type of account must an attorney place retainers?
Client funds must be placed in either an interest-bearing account with the interest paid to the client or an Interest on Lawyers’ Trust Accounts (IOLTA) account. RPC 1.15(II). A lawyer shall designate all trust accounts and all deposit slips and checks drawn thereon as “Attorney Trust Account,” “Attorney Escrow Account,” “IOLTA Account,” or “Attorney Fiduciary Account.” Business accounts shall be designated “Business Account,” “Operating Account,” or something similar. RPC 1.15(III).
What is the general rule regarding retainers and other firm moneys?
Lawyers must keep client property and funds separate from their own and are subject to discipline for commingling their funds or for borrowing money not yet earned. No funds belonging to a lawyer or law firm may be deposited in a client trust account or otherwise commingled with client funds, except for funds reasonably sufficient to pay bank charges. Funds in the trust account may not be used for any unauthorized purpose. RPC 1.15(II).
What the record keeping requirement regarding moneys?
A lawyer must maintain records of the account for future reference, and these records are subject to audit by the state’s disciplinary board. RPC 1.15(III).
What is the proper protocol if their is a dispute over the use of the retainer?
Any portion of funds in the client trust account belonging to the lawyer must be withdrawn at the earliest reasonable time after the lawyer’s interest in that portion becomes fixed. If the lawyer’s right to receive a portion of the trust funds is disputed by the client, then the disputed portion must not be withdrawn until the dispute is finally resolved. RPC 1.15(I)(d).
What is the “notice and delivery” requirement regarding retainers?
When a lawyer receives funds or other property in which a client or third person has an interest, the lawyer must promptly notify the client or third person. When the lawyer is required to pay over the funds, the lawyer must promptly deliver them to the client or third person, and upon request by the client or third person, must promptly render a full accounting. RPC 1.15(I)(c).
May an attorney terminate the attorney-client relationship?
An attorney may withdraw from representation when circumstances allow, but she has a duty of mitigation to lessen any adverse impact upon the client. RPC 1.16(d).
When must an attorney terminate the attorney-client relationship?
A lawyer must withdraw from representation if failure to do so would result in violating ethics rules or other law. RPC 1.16(a)(1).
Must an attorney terminate the attorney-client relationship if the client suggests illegal or unethical conduct?
A lawyer is not obliged to withdraw simply because the client suggests a course of conduct that would result in such a violation, but only if the client demands such conduct. RPC 1.16, cmt. 2.
Must an attorney withdraw due to a decline in health?
A lawyer is required to withdraw when his physical or mental condition materially impairs the ability to represent the client. RPC 1.16(a)(2).
When may a client terminate the attorney-client relationship? What about a court-appointed attorney?
The client has an absolute right to discharge a lawyer for any reason or no reason at all. The lawyer is required to withdraw from the representation upon being discharged, unless ordered by the court to continue representation. RPC1.16(a)(3). Whether a client can discharge appointed counsel may depend on applicable law. RPC 1.16, cmt. 5.
