Rules [Content] Flashcards
Know the substance of the rule
Rule 1.1: Competence
Requires a lawyer to provide competent representation. Competent representation includes legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Cmt. 1 = Factors of knowledge and skill: relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training/experience in the field in question, whether the lawyer can devote the necessary prep and study to the matter, and whether it is feasible to associate/consult with another experienced/competent lawyer in that field.
Cmt. 2 = A lawyer can establish competence either through association with another experienced/competent lawyer, or through necessary study.
Cmt. 3 = In an emergency situation, where referral or consultation is impractical, an inexperienced lawyer may provide legal advice to the extent reasonably necessary in the circumstances.
Cmt. 6 = An inexperienced lawyer should obtain informed consent before accepting representation and must reasonably believe that she will be able to provide competent representation
Cmt. 8 = A lawyer should keep abreast of changes in the law and its practice
Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer
(a) Generally, the client determines the objectives of representation. Requries the lawyer to consult with the client as to the means why which the objectives are pursued. Permits the lawyer to take action as impliedly authorized. The civil client has absolute discretion over settlement decisions. The criminal client has absolute discretion over plea deals, jury trial waivers, and testimony. Subject to (c) and (d).
(b) Representation does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
(c) Permits a lawyer to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) Prohibits a lawyer from counseling/assisting a client to engage in criminal or fraudulent conduct. Permits a lawyer to discuss the legal consequences of any proposed conduct and may counsel/assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Cmt. 2 = Although clients should defer to lawyers for questions of means and lawyers should defer to clients fro questions of objectives, a disagreement may be resolved by governing law, through consultation with the client, or through consultation with another lawyer. Permits a lawyer to withdraw from representation when fundamental disagreements cannot be resolved. Permits a client to resolve the conflict by firing her lawyer.
Cmt. 3 = Permits a client to authorize her lawyer to take a specific action on her behalf with future consultation. Permits a lawyer to rely on that authorization absent a material change in circumstances. Permits a client to revoke such authorization at any time.
Cmt. 4 = If a client is suffering from a diminished capacity, Rule 1.14 governs future conduct
Cmt. 6 = Permits the scope of representation to be limited by prior agreement btw the lawyer and the client. Permits the agreement to explicitly exclude certain means that might otherwise be used to accomplish objectives.
Cmt. 7 = Requires any limitations on the scope of representation to be reasonable under the circumstances. Any such reasonable limitations are a factor to be considered under a competence determination under Rule 1.1.
Cmt. 9 = If a client uses a lawyer’s legal advice in the course of committing criminal/fraudulent activity, the lawyer does not automatically become a party to that activity. There’s a difference btw providing legal advice about the consequences of the law and recommending means by which criminal/fraudulent activity might be pursued.
Cmt. 10 = Requires a lawyer to withdraw from representation once she discovers that a client’s supposedly proper conduct is actually criminal/fraudulent. In some cases, this Rule requires the lawyer to also give notice of the withdrawal and to disaffirm any opinion, document, affirmation, etc.
Cmt. 12 = Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Permits undertaking a criminal defense incident to a general retainer for legal services. Recognizes that determining the validity of a statute may require disobeying that statute.
Cmt. 13 = Requires a lawyer to tell her client that she cannot counsel/assist her in any criminal/fraudulent activity.
Rule 1.4: Communications
(a) Requires a lawyer to:
(1) promptly inform the client of any decision or circumstance where the client’s informed consent is required;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when any expected assistance is not permitted by the Rules or other law.
(b) Requires a lawyer to explain a matter as reasonably necessary to permit the client to make informed decisions.
Cmt. 1 = Reasonable communication is necessary.
Cmt. 2 = Requires a lawyer to promptly consult her client if informed consent is required for action.
Cmt. 3 = Sometimes reasonable consultation includes consultation prior to taking action. In exigent circumstances [i.e. in the middle of trial] it may be necessary for the lawyer to act without first consulting the client. In such a case, the Rule requires that the lawyer still act reasonably to inform the client of her actions and keep her client reasonably informed as to the status of the matter.
Cmt. 4 = Requires a lawyer to promptly respond to a client’s reasonable request for information, or at the very least, acknowledge receipt of the request.
Cmt. 5 = Adequacy of communication depends on the kind of advice/assistance given.
Rule 1.3: Diligence
Requires a lawyer to act with reasonable diligence and promptness in representing a client.
Cmt. 1 = Requires a lawyer to act with courtesy, respect, commitment, and dedication. It also requires a lawyer to advocate zealously, but it does not require a lawyer to pursue every possible advantage.
Cmt. 2 = Requires that a lawyer’s work-load be controlled so that all matters can be handled competently.
Cmt. 3 = Requires reasonable promptness and prohibits unreasonable delay.
Cmt. 4 = Absent termination, a lawyer should carry out representation to the conclusion of all matters. It requires a lawyer to clarify any doubt about whether the AC relationship still exists, preferably in writing.
Cmt. 5 = The duty of diligence may require the preparation of a plan of reassignment if the current lawyer dies or becomes disabled.
Rule 1.5: Fees
(a) Prohibits a lawyer from making an agreement for an unreasonable amount of fees and/or expenses. Reasonableness factors:
(1) the time, labor, and skill required, and the novelty and difficulty of the questions involved;
(2) the likelihood that the representation in question will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship;
(7) the experience, reputation, and ability of the lawyer(s) performing the services; and
(8) whether the fee is fixed or contingent.
(b) Requires that the scope of representation and the basis or rate of/changes in the fee/expenses must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Exception: when the lawyer will charge a regularly represented client on the same basis or rate.
(c) Permits a fee to be contingent on the outcome of the matter - subject to paragraph (d) or other law. Requires any contingent fee to be agreed upon in writing and to be signed by the client. Requires that such agreements must:
(1) provide the method by which the fee is to be determined, including the percentage(s) that will accrue to the lawyer in the event of settlement, trial or appeal;
(2) provide the litigation and other expenses to be deducted from the recovery;
(3) provide whether such expenses are to be deducted before or after the contingent fee is calculated; and
(4) clearly notify the client of any expenses for which the client will be liable whether or not the client prevails.
Requires a lawyer, upon conclusion of the matter, to provide the client with a written statement detailing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) Prohibits a lawyer from entering into an arrangement for, charging, or collecting:
(1) contingent fees in a domestic relations matter, the payment or amount of which depends upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) contingent fees for representing a criminal defendant.
(e) Permits a division of fees between lawyers who are not in the same firm only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
Cmt. 1 = Factors are not exclusive. Permits reasonable reimbursement of in-house services, like copying or phone calls.
Cmt. 2 = Generally, a lawyer should provide a client with a simple memo stating the lawyer’s customary fee arrangments, the general nature of legal services to be provided, the basis/rate/total amount of the fee, and whether/to what extent the client will be responsible for any costs, expenses, or disbursements.
Cmt. 3 = Contingency fees are subject to the reasonableness standard of paragraph (a).
Cmt. 4 = Permits a lawyer to require advanced payments [i.e. a retainer] but requires the lawyer to return any unearned portion. Permits a lawyer to accept payments in the form of property, as long as there is no Rule 1.8(i) violation. Payments of property are subject to the requirements of Rule 1.8(a).
Cmt. 5 = Requires fee agreement terms to be fair and prohibits arrangments that improperly curtail services for the client or provide services in a way that is contrary to the client’s best interests. Permits a lawyer to define the extent of services in light of the client’s ability to pay. Prohibits using wasteful procedures to exploit an hourly fee arrangement.
Cmt. 6 = Paragraph (d) permits a lawyer to enter into a contingency fee for legal representation regarding the recovery of post-judgment balances due for support, alimony, or other financial orders.
Cmt. 7 = Joint representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.
Cmt. 8 = Paragraph (e) permits lawyers to make fee division arrangments for future work.
Cmt. 9 = Requires a lawyer to follow the established procedures for resolving fee disputes. If the procedure is voluntary, a lawyer should conscientiously consider submitting to it.
