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Rules of Ethics according to Motown’s Great Hits

Presenter: Charnissa Holliday-ScottJames W. Tippin & Associates

Lawyers are expected to demonstrate professional and ethical behavior. This CLE session will use Motown’s greatest hits in an entertaining way to refresh lawyers’ memories about the Rules of Professional Conduct.

From Diana Ross and Stevie Wonder to Marvin Gaye and Lionel Richie, the songs of yesteryear address the Rules regarding key areas that create the most problems for lawyers in the profession surrounding ethics.

What does Motown say about how lawyers should behave?

Video

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ABCBy: Jackson 5

4-1.1 Competence and 4-1.3 Diligence

RULE 4-1.1: COMPETENCEA lawyer shall provide

competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 4-1.3: DILIGENCEA lawyer shall act with

reasonable diligence and promptness in representing a client.

4-1.4 Communication

a) A lawyer shall:1. keep the client reasonably informed about the

status of the matter;2. promptly comply with reasonable requests for

information; and3. consult with the client about any relevant

limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.

b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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Video

Stop! In the Name of Love By: Supremes

Managing Expectations: Prospective Client v. Actual Client

Who is a Prospective Client?

Prospective Client: A personwho discusses with a lawyer thepossibility of forming a client-lawyer relationship with respectto a matter.

Rule 4-1.18

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4-1.18 Duties toProspective Clients

Duties:

Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation. (Exception Rule 4-1.9)

A lawyer subject to Rule 4-1.18(b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. (Exception Rule 4-1.18(d)).

Representation is permissible for a lawyer who has received disqualifying information pursuant to Rule 4-1.18(c), when:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and the disqualified lawyer is timely screened from any participation in the matter.

Who is not a

Prospective Client?

A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of Rule 4-1.18(a).

X

Rules 4-1.2 Scope of Representation

a) Objectives of representation is a client’s decision

b) Representation of a client does not “constitute an endorsement of the client's political, economic, social or moral views or activities.”

c) Scope of representation may be limited by informed consent “in a writing signed by the client to the essential terms of the representation and the lawyer's limited role.”

d) Exception for written consent:• Initial consultation or • Pro bono services provided through a nonprofit organization, a

court-annexed program, a bar association, or an accredited law school”, or

• Services provided by a not-for-profit organization funded by the Legal Services Corporation.

e) An otherwise unrepresented party to whom limited representation is being provided or has been provided is considered to be unrepresented for purposes of communication under Rule 4-4.2 and Rule 4-4.3 except to the extent the lawyer acting within the scope of limited representation provides other counsel with a written notice of a time period within which other counsel shall communicate only with the lawyer of the party who is otherwise self-represented.

f) Lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

g) Manage expectations of client.

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Reduce any Representationto Writing

• Acceptance Letter or Legal Service Agreement

• Who is the Client• What is the Matter• Is there a Retainer – of

course there is!!!!• How does billing work• What happens if Fee is

Disputed

Exception…4-1.2(d)

Video

Shop AroundBy: Miracles

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A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

1) the representation will result in violation of the rules of professional conduct or other law;

2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

3) the lawyer is discharged.

4-1.16 Declining Representation

(a) Except as provided in Rule 4-1.7(b), a lawyer shall notrepresent a client if the representation involves a concurrentconflict of interest. A concurrent conflict of interest exists if: (1)the representation of one client will be directly adverse to anotherclient; or (2) there is a significant risk that the representation of oneor more clients will be materially limited by the lawyer'sresponsibilities to another client, a former client, or a third personor by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict ofinterest under Rule 4-1.7(a), a lawyer may represent a client if: (1)the lawyer reasonably believes that the lawyer will be able toprovide competent and diligent representation to each affectedclient; (2) the representation is not prohibited by law; (3) therepresentation does not involve the assertion of a claim by oneclient against another client represented by the lawyer in the samelitigation or other proceeding before a tribunal; and (4) eachaffected client gives informed consent, confirmed in writing.

4-1.7 CONFLICT OF INTEREST CURRENT CLIENTS

Video

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Money (That’s What I Want)

By: Barrett Strong

Rule 4-1.5 Attorney fees

(a) establishes the fundamental standard that attorney fees must be reasonable: 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.

Reasonable Fees &Earned Fees

4-1.15 SAFEKEEPING PROPERTY

A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property.

Client or third party funds shall be kept in a separate account designated as a "Client Trust Account" or words of similar import maintained in the state where the lawyer's office is situated or elsewhere if the client or third person consents.

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Rule 4-1.16(d)(d) requires any fee that has not been earned to be refunded at the end of the representation:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Refunding Unearned Fees

Video

Ain’t Nothing Like the Real Thing

By: Marvin Gaye & Tammi Terrell

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Clearly State What YouCan and Cannot Do!

Rule 4-7.1

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false if it

contains a material misrepresentation of fact or law.

Truthfulness and Candor

Rule 4-4.1 Truthfulness in Statements to OthersIn the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 4-1.6.

Rule 4-3.3(a) Candor Toward the Tribunal

(a) A lawyer shall not knowingly:(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

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Video

Just My Imagination (Running Away

With Me)

By: Temptations

4-1.14 Client with Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity; is at risk of substantial physical, financial or other harm unless action is taken; and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a next friend, guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 4-1.6. When taking protective action pursuant to Rule 4-1.14(b), the lawyer is impliedly authorized under Rule 4-1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

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Video

Neither One of us Wants to be the

First to Say Goodbye

By: Gladys Knight & The Pips

Rule 4-1.16 Terminating Representation

(b) Except as stated in Rule 4-1.16(c), a lawyer may withdraw from representing a client if:(1) withdrawal can be accomplished without material adverse effect on the interests of the client;(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;(3) the client has used the lawyer's services to perpetrate a crime or fraud;(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;(5) 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;(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or(7) other good cause for withdrawal exists.

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Practicing law is a thinkingperson’s profession

Be Careful and Be Thoughtful

Some of your best clients are those who do not walk through your doors…

Resources

The Missouri Bar Ethics and Professionalism

• http://www.mobar.org/lpmonline/ethics/

Missouri Office of Chief Disciplinary Counsel

• http://www.mochiefcounsel.org/

Kansas Disciplinary Administrator's Office

• http://www.kscourts.org/rules-procedures-forms/attorney-discipline/

The Kansas Bar Association Ethics Advisory Committee

• https://www.ksbar.org/group/ethics_advisory

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QUESTIONS?