Professional Responsibility Essay Rules

Question 1

General Rule Contingency Fee Agreements

Answer 1

• the general rule is that contingency fee agreements are permitted except for in the following types of cases:
• criminal cases
• domestic matters involving matters for divorce, alimony, or property settlement.

Question 2

MRPC Rules For Valid Contingency Fee Agreement

Answer 2

-Under MRPC 1.5 contingency fee MUST:
1. be in writing
2. signed by the client
3. explain how the fee will be determined
4. explain extraneous expenses (ex: cost of printing)
5. determine whether extraneous fees are deducted before or after the fee calculated

Question 3

Reasonable Fee Rules (MRPC V. CRPC)

Answer 3

MRPC:
- under the MRPC, a lawyer shall not make an agreement for, charge, or collect UNREASONABLE FEES.

CRPC
- a lawyer’s fees must NOT BE UNCONSCIONABLY HIGH

TIP: average contingency fee around 30% —> anything above that is likely unreasonable [depending on analysis of factors]

Question 4

Duty to communicate MRPC 1.4

Answer 4

Rule: a lawyer has a duty to keep her client informed about the case, comply with reasonable requests for information, and consult the client if the client expects assistance not in accordance with the lawyer’s ethical obligations

Question 5

MRPC Prohibiting Against Referral Fees

Answer 5

Rule: a lawyer SHALL NOT give anything of value to any person in return for recommending the lawyer’s services (but may give nominal gift).

Question 6

MRPC General Rule on Fee Agreements (Writing)

Answer 6

Rule: the general rule under the ABA is that agreements do not have to be in writing UNLESS it is a contingency fee agreement.

Question 7

CRPC Rule Regarding Fee Agreements (Writing Requirement)

Answer 7

Rule: under the CRPC, a FEE AGREEMENT MUST BE IN WRITING UNLESS ONE OF THE FOLLOWING APPLY:
- the total expenses to the client are reasonably anticipated to be below $1k (including attorneys fees)
- the client is a corporation
- the client states in writing she does not want a written fee agreement
- the client is a previous client obtaining similar services
- emergency circumstances which made the writing impractical

Question 8

A lawyer may accept property in exchange for services as long as_______.

Answer 8

Rule: a lawyer may accept property in exchange for services as long as this is not a property interest in the cause of action

Question 9

Rule: disputed fee

Answer 9

Rule: if a fee is disputed by a 3P (usually client’s creditor), the lawyer must hold separate the disputed portions of the funds until the claim is resolved

Question 10

MRPC 1.6 CONFIDENTIALITY

Answer 10

Rule: a lawyer shall not reveal any information relating to the representation of the client UNLESS the client: (i) gives informed consent, (ii) disclosure is implicitly authorized, OR (iii) otherwise permitted by law.

EXCEPTIONS: a lawyer may reveal information representation to the client if the lawyer believes it is reasonably necessary to prevent reasonably certain death or bodily harm, committing a crime or fraud that is reasonably certain to cause significant financial harm/ harm to property AND is using lawyer’s services in furtherance of those crimes

Question 11

Competence [MRPC]

Answer 11

NOTE: YOU NEED TO MENTION THIS EVEN WHERE IT’S NOT AN ISSUE IN YOUR PR ESSAY. JUST STATE THE RULE AND BRIEFLY SAY IF/WHY INAPPLICABLE.
Rule: a lawyer shall provide competent representation to a client. Competent representation requires the lawyer to have the knowledge, skill, thoroughness and preparation reasonably necessary for representation.

Question 12

Competence CRPC

Answer 12

CRPC Rule: a lawyer is subject to discipline if the lawyer intentionally, recklessly, or repeatedly fails to perform legal services with competence.
-competence under CRPC means the learning and skill, mental, emotional, and physical ability reasonably necessary for the performance of representation.

Question 13

a lawyer can gain competence by

Answer 13

Rule: a lawyer can gain competence by taking the time to undergo the necessary preparation to learn the law at issue or associating with a lawyer reasonably believed to be competent in the area

Question 14

Transactions with Clients

Answer 14

Business Transactions: must be fair and reasonable to the client, the terms must be fully disclosed in writing, the client must be advised that she should obtain outside representation for the matter and given the reasonable opportunity to seek such advice, and the client must give consent in writing.

Question 15

Sexual Relations Rule

Answer 15

Rule: a lawyer shall not have sexual relations with a client unless consensual sex pre-dated the attorney-client relationship.
[THE RULE IS THE SAME FOR THE MRPC AND CRPC].

Question 16

Communications with Represented Persons

Answer 16

Rule: in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.

Question 17

Current Conflicts of Interest

Answer 17

Rule: L shall not represent a client if the representation involves a CONCURRENT conflict of interest. A concurrent conflict of interest occurs when (1) the representation is directly adverse to another client OR (2) there is a significant risk that the representation of one or more clients will be MATERIALLY LIMITED by L’s responsibilities to another client, former client, 3P or L’s personal interest.

Question 18

MRPC Exceptions Concurrent Conflicts of Interest

Answer 18

MRPC: even when a concurrent conflict of interest exists, L may represent the client IF L reasonably believes that she can provide competent and diligent representation to each affected client, representation is not prohibited by law, does not involve matter where one client is against another represented by L in the same litigation (L representing both in matter against each other) AND L receives INFORMED CONSENT IN WRITING.

Question 19

CRPC Conflict of Interest

Answer 19

CRPC: requires written DISCLOSURE if the L: (1) knows that another lawyer in the L’s firm has a relationship or responsibility to a party or W in the same matter, or (2) knows/ rsnbly should know that another party’s lawyer is a relative of L, lives with L, is a client of L, or another lawyer in L’s firm, or has an intimate personal relationship with L.
CA generally requires informed written consent whereby disclosure of the conflict and the consent must be in writing ( unless the conflict arises out of the situations above, which only require WRITTEN DISCLOSURE).
KNOW THE DIFFERENCE BETWEEN WRITTEN DISCLOSURE V. WRITTEN INFORMED CONSENT