Professional Responsibility & Competence

Professional Responsibility: Business vs. Profession

• Rule 1.1 states a lawyer must provide competent client representation, requiring necessary legal knowledge, skill, thoroughness, and preparation.
• "Reasonably necessary" is determined by considering the complexity/specialization of the matter, the lawyer's experience/training, available preparation time, and feasibility of consulting with a specialist.
• An attorney-client relationship can be created when someone seeks legal advice, triggering duties such as diligence, communication, confidentiality, and managing conflicts of interest.
• A lawyer doesn't necessarily need specific training or prior experience to handle unfamiliar legal problems, as continuous learning is expected.

Comments on Competence

• Factors determining requisite knowledge and skill include matter complexity, lawyer's general and specific experience, preparation time, and availability of specialists.
• Required proficiency is often that of a general practitioner, but expertise may be needed in certain situations.
• A new lawyer can be as competent as an experienced one, as fundamental legal skills apply across all specializations.
• Lawyers can provide adequate representation in novel fields through study or by associating with a specialist.
• In emergencies, lawyers can give advice outside their expertise if referral is impractical, but assistance should be limited to what's reasonably necessary.

Thoroughness and Preparation

• Competent handling involves inquiry into factual and legal elements, using methods meeting practitioner standards and including preparation.
• The required attention and degree of preparation is determined by what is at stake.
• Agreements can limit the matters a lawyer is responsible for.

Retaining or Contracting with Other Lawyers

• Informed consent should be obtained before retaining outside lawyers to assist in providing legal services to a client
• It also must be reasonably believed that the outside lawyers' services will contribute to competent and ethical representation
• The decision to retain or contract with other lawyers will depend on the services being performed, and the ethical environment of the jurisdictions in which the services will be preformed.
• Lawyers should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them when lawyers from multiple firms are providing services.

Maintaining Competence

• Lawyers should stay updated on law changes and technology, engage in ongoing education, and meet CLE requirements.

Rule 5.4 & Profit-Sharing

• Rule 5.4(a)(3) allows lawyers to share fees with non-lawyers as part of a firm profit-sharing plan, exempting them from the general rule.

Attorney Client Relationship

• Providing specific and tangible legal work (i.e. marking up a contract) constitues legal advice.

Rule 5.5: Unauthorized Practice of Law

• Non-lawyers involved in the practice of law can pose dangers because they are not subject to the rules of professional responsibility.

Rule 1.16: Declining or Terminating Representation

• Lawyers MUST inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation:

  • The representation will result in violation of the Rules of Professional Conduct or other law.
  • The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client
  • The lawyer is discharged
  • The client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud

• Lawyers CAN withdraw from representing a client if:

  • withdrawal can be accomplished without material adverse effect on the interests of the client
  • the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent
  • the client has used the lawyer's services to perpetrate a crime or fraud
  • the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
  • the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled
  • the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client -other good cause for withdrawal exists

• SHALL in (a) and MAY in (b) are very important distinctions here in this rule

Rule 6.2: Accepting Appointments

• Rule 5.5(c)(3) allows attorneys to work temporarily out of their home state in situations beyond litigation, 5.5(c(2), and alternative dispute resolution.
• For example, (c)(4) would temporarily allow an attorney licensed in Florida with an environmental practice to consult with a California company on ecological issues.
• Rule 5.5(2) “are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized”

Attorney Discipline & Competence

• An attorney should not be forced to set aside his personal beliefs to provide competent counsel.
• Time is of the essence when dealing with a patent case.
• Competence and duty are behavior functions, and are independent of the results of an event in an emergency situation.

Partner/Supervisory Lawyer Responsibilities

• Supervising attorneys must ensure adequate preparation and representation.
• Rule 1.1 (and thus Rule 5.1) can be violated even without client harm; causation isn't needed for discipline but is necessary for legal malpractice claims.
• Rule 5.1 places obligations on the supervising attorney to ensure adequate preparation and representation

Malpractice Liability

• Under Restatement §14, facts must give rise to an attorney-client relationship to create duty
• Restatement §48 states 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.
• Restatement §52: Standard of Care: the competence and diligence normally exercised by lawyers in similar circumstances

Rule 1.8(h)

• There is a conflict between the lawyer and the client, now what is the level of protection needed for the client? → RULE 1.8(h).
• Clients aren't in an equal bargaing position with an attorney which is why the client needs to seek outside counsel.

Allocation of Decision-Making

• In civil matters whether to settle is a decision of the client.

Client Communications

• Rule 1.4 states “a lawyer shall keep the client REASONABLY informed about the state of the matter”.
• Rule 1.4(a)(4) says “a lawyer shall promptly comply with reasonable requests for information”.

Rule 2.1: Advisor

• Rule 2.1 permits a lawyer to refer to considerations other than law, including reputational risks and the client’s long-term interests.

Rule 1.14 & Diminished Capacity

• Under Rule 1.14 when a client suffers from diminished capacity, a lawyer may need to not comply with the duty of confidentiality or loyalty that would normally govern a lawyer-client relationship.
• Rule 1.6(a) also needs to be consulted here as well.

Rule 7.3: Solicitation of Clients

• An attorney is permitted to solicit professional employment from persons with whom the attorney has a prior business or professional relationship. See Rule 7.3(b)(2).

Attorney Marketing

• Attorney's are permitted to use marketing firm's to assist them with marketing efforts
• Attorney marketing that is deemed misleading is prohibited.

Rule 1.5: Fees & Costs

• Costs are expenses that you incur in the practice of law but Fees are a lawyer’s hourly charge

• Contingency fees MUST be in writing, cannot be used in divorce or child custody cases, or criminal cases

• Division of fees amongst lawyers not in the same firm:

  • Must be proportional to the services performed by each lawyer
  • Must be reasonable
  • Client must agree

• To measure “a reasonable attorney fee” you must:

  • Look at what the appropriate hourly fee is:
  • Look at how complicated the case is, where the litigation is being brought, time/effort
  • Reasonable number of hours expended → LODESTAR

• Contingency basis: means that you may or may not get your fee depending on if you win

• The test to determine if you can have contingency fee enhamcements, are going to be RARE and UNUSUAL

Rules 1.8(i)(2) and Rule 1.5: Fees & Proprietary Interest

• A lawyer may contract with a client for a reasonable contingent fee in a civil case.
• This is an exception to the prohibition on acquiring a proprietary interest in the cause of action or subject matter of litigation that a lawyer is conducting. See Rule 1.8(i)(2).
• If the attorney takes an ownership interest in the company, does this raise more complicated issues? Yes

Fees and Advance Payment

• A client's funds must remain in a client trust account until fees are earned or expenses are incurred.
• If there is a fee dispute, the $2,000 in dispute must be left in the client trust account until the dispute is resolved.

The Lodestar Fee

• The lodestar fee may be increased due to superior performance and results provided that the judge identifies extraordinary circumstances to justify the enhancement.

Rule 1.6: Confidentiality of Information

• Rule 1.6 states a lawyer shall not reveal information relating to the representation of a client UNLESS:
  • The client gives informed consent
  • The disclosure is impliedly authorized in order to carry out the representation
  • To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client
• The disclosure is permitted to paragraph(b), states that: “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;
  • to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
  • to secure legal advice about the lawyer's compliance with these Rules;
  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
  • to comply with other law or a court order; or
• Lawyers are expected to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Criteria for Atttorney Client Privilege

• The attorney-client privilege applies only in testimonial or evidentiary settings. The attorney-client privilege is based on state law when asserted in state court and is based on federal law when asserted in federal court.
• Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked as provided in § 86 with respect to:
  • Communication
  • Made between privileged persons
  • Made in confidence
  • Made for the purpose of obtaining or providing legal assistance for the client
• Privilege is not always guaranteed even when speaking in confidence.

Expectations of Confidentiality

• A communication is in confidence if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person or another person with whom communications are protected under a similar privilege.
• When obtaining negative information, the information is not privileged if employees were not communicating about legal matters but were communicating about factual matters intended to be made public.

Rule 502: Attorney-Client Privilege and Work Product; Limitations on Waiver

• (b) 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 in a federal or state proceeding if:
  • the disclosure is inadvertent;
  • the holder of the privilege or protection took reasonable steps to prevent disclosure; AND
  • the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
• 502(d) 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

The Crime-Fraud Exception to the Attorney-Client Privilege

• “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.”