Safeguarding Client Funds and Property / Scope of Representation / Communication / Legal Malpractice / Unauthorized Practice of Law

Question 1

Rule 1.15 – Safekeeping Client Property

Answer 1

• Must hold funds and property separate from your own property
• Must hold funds in a bank in the state where your office is situated.
  
  • Exception: client consent to hold elsewhere
• Must keep complete records of client funds and property
• Must maintain these records for five years after termination of representation
• Legal fees and expenses paid in advance (unearned fees and unexpended costs) must be deposited into trust
• Only the exact amount for bank service charges can be deposited into a trust account
• You must promptly deliver to a client or third person any funds/property to which that person is entitled
• Upon request, you must promptly render an accounting of such funds/property
• Funds or property in dispute must remain in trust until the dispute is resolved
• You must promptly distribute any portion of property not in dispute
• You cannot take fees and costs from the trust account until the fees have been earned and the costs incurred.

Question 2

SUMMARY OF RULE 1.15

Answer 2

• PDAD: Promptly Deliver, Account and Distribute
• Disputed funds stay in trust
• No commingling. Exact service fees only.
• No withdrawal from trust unless:

1. Earned fees;
2. Expended costs or
3. Making a refund

• Misuse = misappropriation/embezzlement

Question 3

Rule 1.2 – Scope of Representation

Answer 3

You shall abide by a client’s objectives whenever possible and consult with a client as to how to achieve those objectives

• You must abide by a client’s decisions in a criminal case

Question 4

Rule 1.2(b)

Answer 4

The fact that you represent someone is not the equivalent of an endorsement of the client’s beliefs, views or activities.

Question 5

Rule 1.2(c)

Answer 5

You may limit the scope of the representation if to do so is:

1. Reasonable under the circumstances; and,
2. The client has given informed consent.

Question 6

Rule 1.2(d)

Answer 6

You shall not counsel a client to engage, or assist a client in conduct you know to be criminal or fraudulent.

Question 7

Rule 1.4 – Communication

Answer 7

• You must promptly obtain any required informed consents
• You must reasonably consult with the client about the client’s objectives and how to fulfill them.
• You must keep the client reasonably informed about the status of the client’s matter.
• You must promptly comply with reasonable requests for information
• You must promptly consult with the client regarding any limitation on your conduct when the client expects assistance not permitted within the rules
• You must explain a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation

Question 8

Rule 5.5 – Unauthorized Practice of Law (UPL)

Answer 8

A lawyer shall not:

1. Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or,
2. Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law

Question 9

What is “The Practice of Law?”

Answer 9

Court appearances on behalf of another

Legal advice (specific vs. general)

Question 10

General Account vs. Trust Account

Answer 10

• IOLTA/Trust Account:
  
  • Unearned fees
  • Unexpended costs
  • Exact bank
  • Service charges
• General or Operating Account:
  
  • Engagement Fees
  • Earned Fees

Question 11

Elements for Legal Malpractice

Answer 11

• Duty (attorney/client relationship)
• Breach of the Duty of Care
• Proximate Cause (case within the case)
• Damages