Professional Responsibility

Question 1

Fee Reasonableness

Answer 1

A) Referral fees are unethical and not allowed.
B) The reasonableness of a lawyer’s fees for services or expenses involve consideration of the following factors:
1) The amount of time and labor involved
2) The novelty and difficulty of the questions involved
3) The skill(s) required
4) The interference with other employment by the lawyer
5) The customary fee within the locality for similar work
6) The amount involved and the result obtained
7) The nature and length of the relationship between the parties
8) The experience, ability, and reputation of the attorney
9) Time limitations by the client or the circumstances

Question 2

Client Rights

Answer 2

The client should always receive a statement of the client’s rights.

Question 3

Contingent Fees

Answer 3

• Contingent fees are unethical and not allowed in family law and criminal cases.
• A fee in excess of the guidelines is presumed excessive, but the presumption can be rebutted.
• Allowable fee amounts depend on whether the case is settled before or after the answer is filed, the trial is on damages only, or a notice of appeal is filed. The fee amount also turns on the amount received.
• The guidelines provide for fees ranging from 15%–40%.

Question 4

Fiduciary Duty

Answer 4

• An attorney has a fiduciary duty to his client, which includes a duty of—
  1) loyalty,
  2) confidentiality,
  3) diligence,
  4) communication, and
  5) competence in representation.
• An attorney must always act in the best interest of his client.

Question 5

Conflict of Interest

Answer 5

1) A potential conflict of interests may result from dual representation of clients in a matter.
2) An attorney—
A) who has represented a client on a matter
B) must not thereafter represent another client in the same or substantially related matter
C) in which that client’s interests are materially adverse,
D) unless the attorney first receives written informed consent from that past client.
3) An attorney—
A) may not use information gained in the representation of a past client
B) to the detriment of the past client,
C) unless the information in question is “generally known” to the public.

Question 6

Overcoming Conflict of Interest Accusations

Answer 6

To protect oneself from accusations of unethical representation of both parties, the lawyer must—

1) reasonably believe that such representation will not adversely affect the lawyer’s relationship with either client; and
2) obtain each client’s consent after disclosure of possible conflict.

Question 7

Client Fraud

Answer 7

An attorney must—

1) not help his client to commit a crime or fraud, and
2) withdraw from representation if the client—
a) has used the lawyer’s services to perpetuate a crime or fraud, or
b) persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.

Question 8

Exception to Client Fraud

Answer 8

The only exception to this rule—when the attorney can choose not to withdraw—is if the client agrees to disclose and rectify the crime or fraud.

Question 9

Communication with Represented Persons

Answer 9

An attorney is prohibited from—

i) communicating with a person who is the subject of litigation
ii) that the attorney knows to be represented by counsel,
iii) unless that person’s counsel grants permission to do so.

Question 10

Attorney Testimony

Answer 10

Generally, a lawyer cannot represent a client in litigation where the lawyer is likely to be a necessary witness.

Question 11

Exceptions for Attorney Testimony

Answer 11

A lawyer can ethically testify at a client’s trial if—
A) in regards to—
i) uncontested matters;
ii) matters of formality;
iii) the nature and value of legal services; or
B)—
i) the lawyer was needed to testify and
ii) the lawyer’s withdrawal would create a substantial hardship to the client.

Question 12

Solicitation

Answer 12

1) A lawyer may not solicit professional employment from
i) a prospective client
ii) with whom the lawyer has no family or prior professional relationship
iii) when the significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.
2) The rule prohibits solicitation by contact—
i) in person,
ii) mail,
iii) telephone,
iv) telegraphy, or
v) any other means.

Question 13

Solicitation Waiting Period

Answer 13

There is a 30-day waiting period before written communications are permitted in cases involving—
A) personal injury,
B) wrongful death, or
C) disaster.

Question 14

Other Means of Payment

Answer 14

• A lawyer may accept property in return for services, provided that this does not involve a proprietary interest in the cause of action or subject of the litigation.
• Nonetheless, such arrangement may also violate the conflict of interest rule because it may be a business transaction between client and the lawyer.

Question 15

Prohibited Transactions

Answer 15

I) A lawyer must not—
A) enter into a business transaction with a client or
B) knowingly acquire an ownership or other pecuniary interest adverse to a client,
II) except—
A) a lien granted by law to secure a lawyer’s fee or expenses, or
B) unless—
1) the terms are
i) fair and reasonable and
ii) written in a way the client can understand;
2) the client is
i) advised in writing to seek independent counsel and
ii) given a reasonable time to do so; and
3) the client gives
i) informed written consent towards the essential terms of the transaction
ii) including whether the attorney is representing the client in that transaction.

Question 16

Third Party Payments

Answer 16

A lawyer may not accept fees from a third party for representing the client unless three conditions are met:

1) the client gives written, informed consent;
2) the third party does not interfere with the—
a) lawyer’s independence or
b) representation of the client; and
3) the arrangement does not compromise the client’s confidential information.