Legal Ethics - National Juris University

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Legal EthicsLecture 20

Prof. Howard Leib© 2017 National Juris University

22Delivery of Legal Services

33Marketing Professional ServicesProblem #32 - Facts

• Hector Ramirez has represented the Peron family for several years in minor matters for which he has charged minimal fees.

• Young Joseph Peron was recently seriously injured when a telephone company truck went out of control and into a schoolyard.

• The Peron family wants to file suit and has come to Ramirez for help.

• Ramirez realizes that he is a competent attorney and can handle this case without obvious errors.

• However, he also knows that he is not experienced in personal injury work, that the medical evidence necessary to prove the case correctly will be complex and that he may not be able to cross-examine the defense doctors effectively.

• Ramirez can see, on the other hand, that the fee this case would justify would be the largest he has ever earned and would support him while he did other, less remunerative work.

44The Ethics of Referral to a SpecialistProblem #32 - Facts

• Ramirez also knows that Joe Castro is a very successful “Certified Trial Specialist.”

• He is experienced at handling personal injury cases and will take the Peron case very seriously.

• Best of all, Castro has offered to pay Ramirez one-third of his own one-third fee, or $10,000, whichever is less, as a “finder’s fee” for sending the case to him.

• If Ramirez prefers, he and Castro will “jointly” handle the case on the same financial basis.

• Ramirez had also has met another personal injury lawyer who might do an even better job than Castro but who is so ethical that he would be shocked at being asked to share his fee with Ramirez.

5The Ethics of Referral to a SpecialistWhen a Matter Requires New Skills

• A2. If Ramirez believes that he can perform well enough that it is unlikely he could be successfully sued for malpractice, should that be the end of the issue of his competence to take on the matter?

• Lawyers frequently take on cases of types they have never handled before.

• Comment 2 to Rule 1.1 A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. … A lawyer can provide adequate representation in a wholly novel field through necessary study.

• The concern here may be less where a contingent fee will be charged. The Peron family runs more risk that Ramirez will settle too cheaply than that he will commit an obvious error constituting malpractice.

6The Ethics of Referral to a SpecialistCalling a Lawyer a “Specialist”

• B3. May lawyers with a specialty designation affirmatively claim they will perform at a higher level of skill than would the average lawyer?

• A lawyer may also advertise that her law practice is “limited to bankruptcy”.

• Rule 7.4(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

• The grant of specialty designation should satisfy the requirement of “factual substantiation” in Rule 7.1, Comment 3.

• Note that a specialty designation might subject the lawyer to a higher standard of performance if sued for malpractice.

7The Ethics of Referral to a Specialist

Payment of a Referral Fee

• C1. If Ramirez were a partner in a large firm, how would he likely handle the Peron family’s case?

• Ramirez would likely involve another attorney in the firm with more experience.

• Rule 1.5(e) A division of a fee between lawyers who are not in the same firm may be made 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.

• Rule 1.5 does not concern itself with referral fees withinthe same firm.

8The Ethics of Referral to a Specialist

Alternatives to Referral Fees

• D2. Could Ramirez avoid all referral fee problems by saying to Castro, for example, “I’ll send you this big case if you’ll refer some good clients my way”?

• Yes, under 2002 revisions that added Rule 7.2(b)(4).

• (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

• (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

• (i) the reciprocal referral agreement is not exclusive, and

• (ii) the client is informed of the existence and nature of the agreement.

99Strickland v. Washington466 U.S. 668 (1984)

• Facts

• Washington (defendant) went on a ten-day crime spree during which he committed three groups of violent crimes, including multiple murders, kidnapping and theft.

• Until then, Washington claimed he had no significant criminal record.

• He eventually turned himself in to the police and gave a statement confessing to the third group of crimes, which included one murder.

• Washington was appointed an experienced criminal attorney.

• Against his lawyer’s advice, Washington later confessed to the first two murders.

• This caused Washington’s lawyer to feel a sense of hopelessness about his client’s case.

• Again ignoring his lawyer’s advice, Washington pleaded guilty to all the charges against him.

• Washington told the judge that when he committed the crimes he was under extreme stress because he was unable to support his family.


• Facts

• Washington then rejected his lawyer’s advice that he request an advisory jury for his capital sentencing hearing.

• The trial judge found several aggravating circumstances with respect to each of the three murders and found the mitigating factors, presented by the defense, unpersuasive.

• Specifically, he found that Washington was not suffering from extreme emotional disturbance.

• The trial judge sentenced Washington to death on each of the three murder counts and to prison for the other crimes.

• The state supreme court upheld the convictions and the sentences.

• Washington filed a petition for collateral relief claiming ineffective assistance of counsel at the sentencing proceeding.


• Facts

• He cited six instances of misconduct:

• (1) The lawyer did not move for a continuance to prepare for the sentencing hearing;

• (2) the lawyer did not interview and present character witnesses;

• (3) the lawyer did not request a psychiatric report;

• (4) the lawyer did not seek a pre-sentence investigation report;

• (5) the lawyer failed to present meaningful arguments to the sentencing judge and

• (6) the lawyer failed to examine the medical reports and cross-examine the prosecution’s medical experts.

• Washington’s lawyer testified that he wanted to rely on the plea colloquy to establish Washington’s emotional stress and his background.

• He also said that he did not request a pre-sentence report because it would have established Washington’s criminal history to the court.


• Facts

• Counsel also testified that his trial strategy was based in part on what he knew about the judge determining his client’s sentence.

• Finally, counsel believed there were mitigating circumstances that would keep the judge from imposing a capital sentence.

• The trial court did not grant a hearing and denied relief.

• Washington then filed a petition for a writ of habeas corpus.

• The federal district court agreed with the state trial court.

• The court concluded that while Washington’s lawyer had made mistakes, Washington suffered no prejudice as a result.

• The court of appeals reversed and remanded the case.


• Issue

• Has a defendant suffered from the ineffective assistance of counsel where the attorney’s conduct has fallen below the objective standard of reasonableness and the defendant has been prejudiced by this conduct?


• Holding

• Yes. A defendant has suffered from the ineffective assistance of counsel when the attorney has not acted as a reasonably competent attorney, and there is a reasonable probability that absent these errors the result of the proceeding would have been different.

• Addressing the first element, there is no set of rules that will establish whether an attorney acted reasonably.

• Instead, all of the facts, as they existed at the time counsel made his decision, must be considered.

• There is a strong presumption that an attorney has acted reasonably.

• Otherwise, any defendant, upon conviction, could challenge the sound trial strategy of his attorney since it would be easy for a court to decide that an unsuccessful act or omission was unreasonable.


• Holding

• Addressing the second element, the purpose of Sixth Amendment right to counsel is to ensure a fair trial in order to justify reliance on the outcome of the proceedings.

• Therefore, any error on the part of counsel must be prejudicial to the defendant to constitute the ineffective assistance of counsel.

• The burden is on the defendant to prove that he was harmed by his attorney’s conduct and that there is a reasonable probability that absent the attorney’s errors, the outcome would have been different.

• In this case, there was no ineffective assistance of counsel.

• Counsel’s decisions were all based on professionally reasonable judgments.

• The record shows that Washington’s attorney made the strategic decision to argue mitigating circumstances due to severe emotional distress.

• Counsel’s decisions were all consistent with this case theory.


• Holding

• Furthermore, the record does not indicate that the lawyer’s sense of hopelessness distorted his professional judgment.

• Washington was not prejudiced by his lawyer’s actions.

• There is no reasonable probability that the omitted evidence would have changed the outcome.

• The aggravating circumstances outweighed the mitigating factors to such an extent that any character testimony would not have changed the sentencing.

• Therefore, Washington was not denied his Sixth Amendment right to counsel and he received a fair trial.

• To establish the ineffective assistance of counsel, a convicted defendant must show that his counsel’s performance was deficient because the lawyer did not act as a reasonably competent attorney, and that he was prejudiced by the deficiency because there is a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different.

1717Competence and Legal Malpractice

• You are a competent lawyer if you have “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.1.• Your skills must include the ability to research, write,

advocate, and negotiate.

• Competence is a function of what is reasonable under the circumstances.

• General claims of ineffective assistance of counsel under the Sixth Amendment require a showing that his lawyer’s acts or omissions were “outside the wide range of professionally competent assistance” and that the ineffectiveness caused “actual prejudice.” Strickland v. Washington, 466 U.S. 668(1984).

1818The West Wing (1999-2006)TV_WestWing_S4E03_01

1919Competence and Legal Malpractice

• Your duty of diligence includes a lawful and ethical commitment to accomplish your client’s objectives “despite opposition, obstruction, or personal inconvenience” to you.

• In a professional malpractice case based on your negligence, your former client must prove that you owed her a duty of care, that you breached that duty, and that the breach caused injury to her in the form of damages.

• You may limit your liability for malpractice if your client is independently represented by counsel.


• Smart & Howe is one of the most successful new firms in its region of the country.

• It regularly reports one of the highest earnings per partner among firms under 300 lawyers in The American Lawyer’s annual surveys, and its starting salary of $150,000 per year is among the region’s highest.

• So is its minimum annual billing requirement for associates of 2,500 hours per year.

• Sarah Smart is co-managing partner of Smart & Howe, and she is in charge of the firm’s real estate group.

• Smart assigns work to the 16 associates who work with her, evaluates their work, and signs all legal opinions and other documents prepared by her group in the name of the firm.

• One of her associates, Arnie Able, has billed over 3,500 hours in each of his first two years, over 30% more than any other associate in the real estate group.

• Smart was surprised that Able could report such billings, because he seemed to leave at five o’clock most days and did not appear in the office on weekends.


• Clients had not complained, however, and Smart had appreciated the boost in her own compensation she got because she supervised such a productive associate.

• Indeed, when a middle-aged partner, Ted Truthful, confronted Smart with concrete evidence that Able was billing fictitious hours, Smart’s only response was to try to force Truthful to retire and to deny him a promised pension.

• Recently, Smart & Howe has noticed that associates stay with the firm an average of 2.8 years and then most move to less stressful work environments.

• Andy Howe, the other co-managing partner, has proposed creation of a part-time program under which associates would be paid 80% of a normal salary for those of their age and experience, but would have a minimum annual billing requirement of only 2,000 hours per year.

• Sarah Smart resists that idea, believing few associates would choose that alternative and saying, “We don’t want to retain the kind of lawyer who will not give client needs the top priority in his or her life.”

2222The Firm (1993)M_Firm_01

23Roles and Responsibilities in a Modern Law FirmObligations of Supervisory Lawyers

• A2. What was Smart’s responsibility to assure that Able did not engage in dishonest billing?

• The Model Rules devote most of Part V to intra-firm organization. Many of these rules are derived from the law of agency.

• Rule 5.1(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

• Smart is subject to discipline under Rule 5.1(b) for not acting reasonably, and under Rule 5.1(c)(2) for ratifyingAble’s deceit.

• Must a lawyer who discovers overbilling take reasonable remedial actions to remedy the overbilling?

2424Quick Quiz

2525End Of Class Review Quiz

2626The End

2727MRPC 1.1

Competence

• A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

2828MRPC 1.5

Fees• (a) A lawyer shall not make an agreement for, charge, or collect an

unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

• (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

• (2) the likelihood, if apparent to the client, that the acceptance of the particular employment 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 with the client;

• (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

• (8) whether the fee is fixed or contingent.

• (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

2929MRPC 1.5

Fees

• (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

3030MRPC 1.5

Fees• (d) A lawyer shall not enter into an arrangement for, charge, or collect:

• (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

• (2) a contingent fee for representing a defendant in a criminal case.

• (e) A division of a fee between lawyers who are not in the same firm may be made 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.

3131MRPC 5.1Responsibilities Of Partners, Managers,

And Supervisory Lawyers• (a) A partner in a law firm, and a lawyer who individually or

together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

• (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

• (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

• (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

• (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

3232MRPC 7.1Communication Concerning A Lawyer’s Services

• A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

3333MRPC 7.2

Advertising

• (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

• (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

• (1) pay the reasonable costs of advertisements or communications permitted by this Rule;

• (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

• (3) pay for a law practice in accordance with Rule 1.17; and

• (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

• (i) the reciprocal referral agreement is not exclusive, and

• (ii) the client is informed of the existence and nature of the agreement.

3434MRPC 7.2

Advertising

• (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

3535MRPC 7.4Communication of Fields of Practice and Specialization

• (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

• (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.

• (c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation.

• (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

• (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and

• (2) the name of the certifying organization is clearly identified in the communication.

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