Ethics and Communication Strategies

Kerry RobinsonSupervising Attorney

HJP-Kent

1

Ethics and Communication Strategies

• HJP In Perspective

• Key Ethics Rules/HJP Support

• Communication Strategies

2

Key Ethics Rules

Key Ethics Rules• Rules of Professional Conduct (RPC)• General Rules (GR)• Civil Rules (CR)

An “I Can Do This!” Approach• How rules apply to HJP• HJP Support and Resources

3

Key Ethics RulesAuthorized Practice of Law (GR 24)• Application of legal principles and judgment• To the facts, circumstances, objectives

Includes:• Giving advice or counsel• Selecting, drafting, completing legal documents• Representing in tribunal or proceeding• Negotiating

RPCs Also Apply To:• Rule 9 Interns (RPC 5.3)• Legal Assistants (RPC 5.3)

4

Key Ethics RulesApplicability to HJP:• Counsel and advise• Negotiate• Limited Representation• Use of Interns and Legal Assistants

How HJP Helps:• Defined limits on the scope of legal services• HJP Supervision• Forms, Pleadings, Information• Trainings• Resources

5

Key Ethics Rules

The Client-Lawyer Relationship (RCP Title 1)• Key RPC Provisions Include:– Competence (1.1)– Scope of Representation (1.2)– Communication (1.4)– Confidentiality (1.6)– Conflicts of Interest (6.5, 1.7

– 1.10, 1.18)

– Clients-Diminished Capacity (1.14)– Declining/Terminating Representation (1.16)

6

Key Ethics Rules

The Client Lawyer Relationship (RPC Title 1)• Competence Defined:– Factors that determine relative knowledge/skills• A matter’s relative complexity/specialized nature• Lawyer’s general expertise and study• Lawyer’s training and experience• Access to field expertise• Reasonable preparation• Client’s emergency need (reasonably necessary)

7

Key Ethics Rules

The Client Lawyer Relationship, cont’d:• “OMG—I’m Not Competent!”• “Yes—You Are!” (RPC 1.1 Comments)– Special training or prior experience not necessarily

required;– Required proficiency may be that of a general

practitioner;– A newly admitted lawyer can be as competent as a

seasoned practitioner;– Access to support is key!

8

Key Ethics RulesThe Client-Lawyer Relationship, cont’d.• HJP Provides the Support/Tools:– Training provided and supplemented– Issues generally consistent– Scope of representation limited– Resources available– HJP staff present– HJP Partners/Housing Expertise– Forms, documents and materials available– Observation opportunities– Deep HJP peer support– Checklists available

9

Key Ethics Rules

Scope of Representation RPC 1.2• A lawyer shall:

– Abide by client’s decisions– Concerning objectives or representation– Consult with client re: means to objectives

• Practice Tips:– Ascertain and analyze facts– Ascertain client objectives– Apply the law– Evaluate and explain options– Confirm client understanding– Allow client to decide– Stay within HJP limited representation services

10

Key Ethics Rules

Scope of representation, cont’d:• Limited appearance by attorney (CR 70.1)

– Can limit appearance– Must state scope of appearance in Notice of Appearance– Can be served simultaneously with court appearance– Requires Notice of Completion (No leave of court required)

• The HJP “In and Out” Process– Notice/Completion of Appearance forms available– Legal Assistants prepare and copy– Signed original filed with court clerk– Copies to : client, opposing counsel, file– Never forget to file the Completion of Appearance

11

Key Ethics Rules

Conflicts of Interest• Key RPCs: 6.5, 1.7 – 1.10, 1.18• Programs Sponsored by Non Profit Organizations (RPC 6.5)

– Short term, limited legal representation– No expectation of continuing representation– No expectation of client fee– Result: such programs (HJP) may be subject to less stringent application of

conflict of interest rules.• Conflict Check Procedures at HJP

– Dockets provided at least one day in advance– Attorneys check for conflicts– If conflict, HJP handles– Conflict waiver forms available for available for individual client issues– Conflict obstacles infrequent– HJP staff ready to assist and evaluate

12

Key Ethics Rules

Lawyer as Advisor RPC Title 2• Exercise independent judgment• Render straightforward, candid advice• Provide honest assessment• May refer not only to law, but also to

considerations including:– Moral factors– Economic factors– Social factors

13

Key Ethics Rules

Confidentiality of Information RPC 1.6• Prohibits revealing information related to the

representation.• Clients can give informed consent to reveal• Lawyer SHALL reveal to prevent:– Reasonably certain death– Substantial bodily harm.

• Lawyer MAY reveal to:– Prevent commission of crime– Secure legal advice about ethical rules– Additional grounds

14

Key Ethics Rules

Confidentiality of Information, cont’d:• Practice Tip Scenario– Client arrives with companion– No privileges attach– Evaluate potential waiver of attorney-client

privilege protection– Client decides value of companion’s presence

15

Ethics

Clients with Diminished Capacity RPC 1.14– Maintain a normal client-lawyer relationship– Can Take reasonably necessary protective action• At risk of substantial financial, physical, or other harm• Client cannot adequately act in own interest• Appointment of GAL, conservator or guardian

– Can reveal information necessary to protect client’s interests

16

EthicsGhost Writing CR 11(b)• Can draft a document for an otherwise self-represented

person:– He/she has read the document– That to his/her best knowledge after reasonable inquiry under the

circumstances• is well grounded in fact• is warranted by existing law, etc.• is not interposed for any improper purpose, etc.• the denials of factual contentions are warranted on evidence or lack of

information• Attorney may rely on client’s representation of facts, UNLESS:

– Attorney believes they are false or materially insufficient– Makes an independent reasonable inquiry into the facts

17

Communication StrategiesObstacles to Effective Communication• HJP Surroundings• Language barriers• Physical/mental impairment or challenges• Stress• Fatigue• Confusion/Disorientation• Lack of privacy• Noise/distractions• Cultural factors• Anti-lawyer bias• Time constraints• Disorganization or missing paperwork• Other factors

18

Communication StrategiesOvercoming Common Communications Barriers• Consider surroundings• Make Eye contact• Use calm voice and demeanor• Remain professional and courteous• Enunciate clearly – Listen carefully• Control the information flow• Interrupt Strategically• Organize paperwork• Be kind but firm• Control the communication exchange

19

Communication StrategiesStrategies for Successful Client Communication• Explain HJP representation and process• Identify representation scope/options

• Counsel and advice• Negotiation• Limited representation

• Ask closed/targeted questions• Interrupt as necessary• Keep client focused• Parrot back information as necessary• Consider visual aids• Review documents. . .

20

Communication StrategiesStrategies for Successful Client Communication, cont’d:• Ask and confirm client objective(s)• Identify case strengths and weaknesses• Identify resolution options• Walk through options—advantages and disadvantages• Allow client to decide• Repeat decision• Obtain signatures• When case completed, explain outcome and next steps• Review any paperwork• Ensure that client has copies of relevant documents• Provide appropriate resources

21

Communication StrategiesStrategies for successful communication with opposing counsel• Maintain respectful, professional demeanor• Use clear and concise communication style• Advocate earnestly, professionally• Avoid interruptions• Consider others listening in• Request necessary paperwork• Present facts clearly• Apply law thoroughly• Provide documents when appropriate• Present resolution options, if any• Confirm offers/options• Review paperwork carefully

22