Competent Representation

• A lawyer must provide competent representation, encompassing the necessary legal knowledge, skill, thoroughness, and preparation.

Determining Requisite Knowledge and Skill

• Factors include the matter's complexity, the lawyer's experience, training, and the feasibility of consulting with a specialist.
• General practitioners are often proficient enough, though some cases require expertise.
• Lawyers can handle unfamiliar legal problems through study or by associating with competent lawyers.
• Emergency assistance should be limited to what is reasonably necessary.
• Competence can be achieved through reasonable preparation, even for appointed counsel.

Thoroughness and Preparation

• Competent handling requires inquiry, analysis, and methods meeting practitioner standards, as well as adequate preparation.
• The attention and preparation needed are determined by what is at stake.
• Agreements may limit the scope of representation.

Retaining Other Lawyers

• Informed consent is vital before retaining lawyers outside the firm, ensuring they contribute to competent and ethical representation.
• Reasonableness depends on the non-firm lawyers' credentials, the services assigned, and the ethical standards of their jurisdictions.
• Lawyers from multiple firms should consult on their roles and responsibilities.

Maintaining Competence

• Lawyers must stay updated on legal changes and technology, pursue ongoing education, and meet CLE requirements.

Sharing Fees with Non-Lawyers

• Rule 5.4(a)(3) provides an exception for profit-sharing compensation plans, allowing lawyers to share fees with non-lawyers under specific circumstances.

Attorney Client Relationships

• If legal advice is given, this establishes a lawyer-client relationship, even if not explicitly stated.

Terminating Representation

• Lawyers must assess each case to determine if they can accept or continue representation
• Lawyers cannot represent a client (or must withdraw) if it violates rules of conduct/other laws, impairs their ability, or if the client seeks to further a crime/fraud.
• Lawyers can withdraw if it doesn't harm the client, the client acts criminally/fraudulently, insists on repugnant action, fails to fulfill obligations, causes financial burden, or for other valid reasons.
• "Shall" and "May" have critical distinctions in Rule 1.16.

Accepting Appointments

• Attorneys may decline representation if they cannot provide competent representation due to personal beliefs
• Attorneys are expected to accept court appointments under certain circumstances

Multijurisdictional Intervention

• Lawyers need a systematic/consistent presence to be flagged with a practice rule violation

Rule 5.5(c)(3)

• A "catch-all" allowing attorneys to work out-of-state in situations beyond litigation
• Permits attorneys to consult with companies in other states on specific issues related to their expertise

Pro Hac Vice

• Prior to pro hac vice admittance lawyers can still complete tasks related to the case in the state in question

Attorney-Client Relationship

• An attorney creates a relationship when they answer a question and should reasonably know that this answer will be relied upon

Responsibilities of Supervisory Lawyer

• Supervising attorneys must ensure adequate preparation/representation
• Rule 1.1 and 5.1 can be violated even without client harm.
• There is an obligation to ensure that the associate attorney's conduct conforms to the Rules of Professional Conduct

Malpractice: Liability

• The REST §14 defines when the attorney-client relationship starts
• A lawyer is civilly liable for professional negligence to a person to whom the lawyer owes a duty of care if the lawyer fails to exercise care and if that failure is a legal cause of injury.
• To prevent misguiding potential clients attorneys should avoid meeting unless they are perpared to accept the case

Restatement 52 Standard of Care

• The competence and diligence normally exercised by lawyers in similar circumstances

Limiting Liability

• An attorney cannot make an agreement limiting malpractice liability to a client unless the client is independently represented – This makes sure that there is a client advocate to navigate

Settling Claims

• Rule 1.8(h)(2) permits settling claims or potential claims so long as the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel.

Limiting Representation

• Rule 1.2(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

Ineffective Assistance of Counsel: Two Part Test

• Prejudice and Unreasonableness must be proven to demonstrate ineffective assistance of counsel

Client Decision Making

• The only civil client decision that Rule 1.2 identifies expressly as an objective is whether to settle.

Client Direction

• Following the client’s instructions about excluding evidence is not liable for malpractice.

Client Communications

• Rule 1.4: Communications regarding the state of the matter in question

Federal Tax Payments

• Attorneys are authorized to advise clients about the consequences that were likely to result if the client violated the law

Business Considerations

• Rule 2.1 permits a lawyer to give nonlegal business advice to a client, but it does not require a lawyer to do so.

Diminished Capacity

• Lawyers can take action to protect the client with diminished capacity from foreseeable harm
• If a client suffers from diminished capacity, a lawyer need not comply with the duty of confidentiality/loyalty that would normally govern a lawyer-client relationship.

Solicitation

• Lawyers can solicit professional employment from persons with whom the attorney has a prior business or professional relationship.

Advertising & Marketing

• Attorneys are permitted to use a marketing firm to assist with her advertising efforts.
• A firm may be designated by the names of all or some of its current members, by the names of deceased members where there has been a succession in the firm’s identity or by a trade name if it is not false or misleading

Expenses vs Fees

• Expenses: costs that you incur in the practice of law
• Fees: a lawyer’s hourly charge

Fees: Rule 1.5

• Contingency fees:
  • MUST be in writing
  • Cannot be used in divorce cases, child custody cases, etc.
  • Cannot be used in a criminal case
• Division of fees amongst lawyers not in the same firm:
  • The division of fees must be proportional to the services performed by each lawyer in the agreement. Must be reasonable, the client must agree
• “Reasonable” = BUZZ WORD

The Hourly Billing Controversy

• Sub contracting must be "Reasonable"
• "Memorialized" = MEANING NOT IN WRITING
• If billed as an expense, then the firm would not be able to charge more than the actual cost to the firm plus a reasonable allocation of overhead directly associated with the contract lawyers.

Rule 1.6: Confidentiality of Information

• Lawyers cannot reveal information relating to the representation of a client UNLESS:
  • The client gives informed consent, (2) the disclosure is impliedly authorized in order to carry out the representation
• A lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
  • to prevent reasonably certain death or substantial bodily harm;
  • to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
  • Comply with other law or a court order Lawyers must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Attorney-Client Privilege: Criteria

• A communication made between privileged persons in confidence for the purpose of obtaining or providing legal assistance for the client.
• It applies only in testimonial or evidentiary settings, such as those involved when a witness is called to testify in court, is subject to a deposition, or is asked to produce records in connection with a court proceeding.
• Based on state law when asserted in state court/federal law when asserted in federal court

Seeking Legal Advice Requirements

• To be applicable the client must be seeking legal advice and assistance from the lawyer.
• Seeking legal advice from a lawyer will not necessarilybe protected by the privilege unless the communication is intended to seek legal advice

Communications Requirements

• The communication can be any expression through which a privileged person undertakes to convey information to another privileged person and any document or other record revealing such an expression.

Expectation of Confidentiality

• The communicating person must reasonably believes that no one will learn the contents of the communication

RULE 502: Attorney-Client Privilege and Work Product

• Limitations on Waiver
• Inadvertent Disclosure [of privileged information] When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver if:
  • The disclosure is inadvertent
  • The privilege holder took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

Controlling Effect of a Court Order

• Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding

Crime/Fraud Exception Rule 82:

• The attorney-client privilege does not apply to a communication occurring when a client:
  • Consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, OR
  • Regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud. “clear"

Work Product Protection

• The work product doctrine is traced to the U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947), in which the Court held that materials prepared for litigation are protected from an adversary’s discovery request.
• The work-product protection is distinct from the attorney-client privilege. Though, like the attorney-client privilege, the work-product protection is also aimed at judges and prevents them from compelling the disclosure of a lawyer’s work-product to an adversary during discovery or other compulsory process.