Lawyer Competence and Independence

Rule 1.1: Competence

• Lawyers must provide competent representation, which includes legal knowledge, skill, thoroughness, and preparation that is reasonably necessary.
• Lawyers are not required to have prior experience in all fields of law but must reach the necessary competency through study, preparation, or association with other lawyers.
• Competency assessment factors include the complexity and nature of the matter, the lawyer's general experience, specialized training, ability to prepare and study adequately, and the feasibility of consulting with another lawyer.
• General practitioners can be competent for many legal issues, but expertise is required in some specialized areas.
• Lawyers must analyze precedent, evaluate evidence, and draft sound legal documents.
• Attorneys must stay current with legal changes and technology through continued education.

Rule 5.4: Professional Independence of a Lawyer

• Lawyers cannot share legal fees with nonlawyers, with limited exceptions for retirement benefits or profit-sharing arrangements.
• Goal is to prevent nonlawyers from influencing legal judgments and preserve the independence of legal counsel.
• Rule 5.4(a)(3) permits profit-sharing as long as it does not interfere with professional independence.
• The Rules do not require that lawyers earn more than nonlawyers.

Attorney-Client Relationship Formation

• The attorney-client relationship begins when a person reasonably believes they are consulting a lawyer to obtain legal advice or representation.
• The lawyer either expressly agrees to provide legal services or impliedly agrees through conduct, such as giving specific legal advice.
• A formal retainer agreement is not required for an attorney-client relationship to exist. The relationship can be implied if the client reasonably relies on the attorney’s legal advice.
• If a potential client shares confidential information during an initial consultation, the attorney may owe duties of confidentiality and conflict-checking, even if no representation follows.
• A close relationship with the client may increase the likelihood of reliance on legal advice, strengthening the attorney-client bond.
• Legal work such as contract markups constitutes legal representation, triggering duties under Rule 1.1.
• A vague disclaimer (e.g., “You may want to consult an employment lawyer”) is not enough to prevent forming an attorney-client relationship.
• A proper disclaimer must state the attorney’s lack of competence, and that the client should seek specialized counsel.
• If the attorney provides specific legal advice, they assume professional responsibility for its accuracy and sufficiency, despite a disclaimer.

Attorney-Client Relationship Termination

• The relationship ends when the agreed-upon scope of representation is completed, when the client fires the lawyer, or when the lawyer withdraws from representation.
• Clients can terminate a lawyer at any time, with or without cause.
• Under Rule 1.16(a), a lawyer must withdraw if representation would violate ethics rules, the lawyer’s condition impairs their ability, or the client insists on using the lawyer’s services for fraud/crime.
• Under Rule 1.16(b), a lawyer may withdraw if it can be done without materially harming the client, the client fails to fulfill obligations, the lawyer finds the representation repugnant, or a court orders the lawyer to withdraw.
• In litigation, an attorney needs court approval to withdraw if representation has commenced.
• The lawyer’s duties of confidentiality and conflict avoidance continue indefinitely after termination.

Rule 5.5: Unauthorized Practice of Law & Multijurisdictional Practice

• A lawyer cannot practice law in a jurisdiction in which they are not admitted, unless an exception applies (e.g., pro hac vice admission, temporary practice under Rule 5.5(c)).
• Exceptions for temporary legal services: associating with a local attorney, services related to a pending tribunal where the lawyer is or expects to be authorized, work tied to arbitration/mediation in the lawyer’s admitted jurisdiction, or services related to the lawyer’s existing practice in another jurisdiction
• A lawyer cannot cure practicing law without authorization by obtaining client consent.
• Rule 5.5(c)(4) allows an attorney to engage in temporary practice if the work is reasonably related to their home-state practice.
• Rule 5.5(b) prohibits a lawyer from establishing a systematic and continuous presence in a jurisdiction where they are not licensed.

Rule 1.16: Declining or Terminating Representation

• Mandatory withdrawal ("Shall" Withdraw): required if representation violates rules or law, the lawyer's condition impairs ability, the lawyer is discharged, or the dient seeks to use the lawyer's services for crime or fraud.
• Permissive withdrawal ("May" Withdraw): Allowed if withdrawal will not materially harm the client, client persists in criminal or fraudulent behavior, dient has already used lawyer's services fraudulently, dient insists on repugnant actions, dient fails to meet obligations, representation causes undue burden, or other good cause exists.

Rule 6.2: Accepting Appointments

• Lawyers should accept court appointments unless representation would violate profressional rules, impose unreasonable burden, or the lawyer finds the dient or cause repugnant.

Rule 7.3: Solicitation of Clients

• Lawyers may not solicit professional employment by live person-to-person contact unless the contact is with another lawyer, family member, close friend, or prior client. General and truthful advertising is permitted.
• Written, recorded, and electronic communications must include “Advertising Material” unless exempted.
• Rule 7.3(b)(2) explicitly allows solicitation of former clients, as they have a prior professional relationship with the lawyer.
• Rule 7.3(a) prohibits live solicitation only if motivated by pecuniary gain.
• Solicitation of former clients or pro bono clients does not violate Rule 7.3.

Rule 7.1: Communications Concerning a Lawyer’s Services

• Prohibits false or misleading communications about a lawyer’s services, including firm names.
• Ads must be truthful and not misleading and lawyers cannot imply experience they do not have.
• A disclaimer does NOT cure false or misleading representations.
• Law firm names must accurately reflect firm composition (Rule 7.1 cmt.).

Rule 1.5: Fees

• Must be reasonable
• Fees are charges for legal services rendered.
• Expenses: costs incurred in the practice of law.
• Contingency fees must be reasonable and in writing, and are not allowed in divorce, child custody, or criminal cases.
• Written agreements are not always necessary but are highly recommended.
• Fees must be proportional to services performed in division of fees among lawyers not in the same firm.
• Reasonable number of hours × appropriate hourly rate = Lodestar method for measuring fees.

Rule 1.6: Confidentiality of Information

• Lawyers must not reveal information relating to representation unless the client consents, the disclosure is impliedly authorized, or one of the seven exceptions applies.
• Exceptions permitting disclosure: to prevent death or substantial bodily harm, prevent the client from committing a crime or fraud causing substantial injury, prevent/mitigate/rectify a crime or fraud already committed, secure legal advice about compliance with the Rules, establish a claim or defense for the lawyer in a legal dispute, to comply with law or a court order, detect and resolve conflicts of interest (if disclosure does NOT prejudice the client).
• Lawyers must take reasonable efforts to prevent unauthorized disclosure.

Attorney-Client Privilege

• A communication between privileged persons in confidence for legal assistance
• Applies in testimonial settings. Follows state law in state courts and federal law in federal courts.
• Privilege is waived when voluntarily disclosed to a third party.

Rule 1.8: Conflicts of Interest and Business Transactions with Clients

• Rule 1.8(a) allows attorneys to enter into business transactions with clients if the terms are fair and reasonable, the client is advised to seek independent legal counsel, and the dient gives informed consent in writing.
• Contingency fees are allowed in civil cases, but advising independent legal counsel is preferred per Rule 1.8(i)(2).
• Rule 1.5(d) prohibits contingency fees in domestic relations matters.
• Rule 1.8(e) allows modest gifts for indigent clients in pro bono cases.
• Rule 1.8(h)(1) prohibits a lawyer from making an agreement with a client that prospectively limits the lawyers liability for malpractice unless the client is independently represented in making the agreement.

Rule 1.15: Safekeeping Property

• Rule 1.15 requires lawyers to keep unearned fees in a trust account until earned.

Work Product

• Tangible or intangible material prepared in anticipation of litigation.
• Originates from Hickman v. Taylor, shielding lawyer-prepared materials from opposing counsel's discovery requests. This prevents free-riding on another lawyer's efforts.
• Differs from attorney-client privilege: work-product prevents unfair advantage during litigation, while privilege protects confidential communications.
• Consists of tangible or intangible material prepared in anticipation of litigation (Federal Rule of Evidence 502(g)(2)).
• Governed by Federal Rule of Civil Procedure 26(b)(3) and Federal Rules of Criminal Procedure 16(a)(2) & (b)(2).
• Opinion Work Product: Attorney's mental impressions, legal theories, and litigation strategy is never discoverable.
• Fact Work Product: May be discoverable if the opposing party shows substantial need and undue hardship in obtaining equivalent materials by other means.
• Work-product protection benefits both the lawyer and the client, and iswaived through voluntary disclosure to a third party likely to share it with an adversary, or failing to object to discovery in a tribunal proceeding.

Rule 1.14: Clients With Diminished Capacity

• Lawyers are allowed to take protective action, including seeking a guardian if necessary.

Rule 1.2: Scope of Representation & Allocation of Authority

• Client controls settlement decisions.
• Client decisions determine fundamental objectives.

Rule 5.1: Responsibilities of Supervising Lawyers

• Requires a supervising attorney to make reasonable efforts to ensure that all lawyers in the firm comply with the Rules of Professional Conduct, including Rule 1.1 (Competence).

Rule 1.3: Diligence

• The lawyer must act with reasonable diligence and promptness in representing a client.
• A lawyer cannot unilaterally stop working on a client’s case solely due to nonpayment unless they properly withdraw under Rule 1.16.
• If withdrawal is necessary, the lawyer must comply with applicable procedural rules to avoid prejudicing the client’s interests.

Strickland v. Washington Test (Ineffective Assistance of Counsel)

• Under Strickland v. Washington, a defendant must show:
• Unreasonable Conduct: The attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms.
• Prejudice: There is a reasonable probability that, but for the attorney’s errors, the outcome would have been different.

Federal Rule of Evidence 502(d)

• Under Rule 502(d), a court order in a federal proceeding can prevent waiver of privilege or protection against disclosure connected with the litigation pending before the court, which is also not a waiver in any other federal or state proceeding.
• Rule 502(d) can protect against a waiver in any subsequent litigation.

Crime-Fraud Exception

• Privilege does NOT apply if a client seeks legal advice to commit fraud.