The Sur-Realist would like to take this opportunity to congratulate and thank Roger Shuler, the brilliant journalist who writes the Legal Schnauzer blog, and Scott Horton, the renowned law professor from Columbia Law School, the writer of Harpers.org. Because of the efforts of these two men, Don Siegelman, the former governor of Alabama, has been released from prison, pending his appeal.
In particular, Roger Shuler has worked tirelessly to uncover the corruption that created the Seigelman case and the Paul Minor / John Whitfield / Wes Teel case where no crime existed. In an extreme simplification, the Republicans (and I’m embarrassed at this time to be a member of the party) felt the need to feather their own nest and found that the easiest way to do that would be to eliminate some of the high rollers in the other party. The belief is that Karl Rove engineered this play, and this has been discussed on MSNBC by Dan Abrams. Scott Horton followed the research begun by Shuler, and he interviewed all the parties involved in the Minor case. He believes that a gross injustice has been done to these men just as it was done to Siegelman. The U. S. House Judiciary Committee will soon be hearing Siegelman's testimony in this matter. Rep. Artur seems very supportive and wants this practice investigated. Hopefully, this means the Minor / Whitfield / Teel case will also be investigated by Congress.
It doesn’t matter if you love or hate Siegelman, Minor, Whitfield, Teel, or any other Americans who were turned into political prisoners in our own country simply because they contributed to the wrong political party. You should be absolutely outraged that we have political prisoners. We have kept our military in constant peril to establish democracy in places that have no concept of a democracy and seemingly no use for one. And behind their backs, our government has sanctioned the persecution and prosecution of people innocent of the crimes of which they stand convicted. Thank God we don’t still burn people at the stake.
Just in case you think you might be safe from the risk of similar persecution, think again. The Sur-Realist has been informed by reliable sources that an arch-nemesis of Wes, a politician, has now started to attack even Wes’ innocent friends and supporters. In Alabama, Roger Shuler is in danger of losing his home simply because the "powers that be" want him to stop blogging. Thank God for people like Shuler and Horton, people who dig up the truth, no matter how obscure, and fearlessly expose evil for what it is and let the rest of us know. They, too, serve to preserve America. God bless them and keep them safe from harm.
Sunday, March 30, 2008
Saturday, March 15, 2008
TO HELP YOU SAVE A LIFE
Blood Clots/Stroke
This is worth sharing. STROKE: Remember These Four Letters.... S.T.R.T.
A neurologist says that if he can get to a stroke victim within 3 hours he can totally reverse the effects of a stroke... totally . He said the trick was getting a stroke recognized, diagnosed, and then getting the patient medically cared for within 3 hours, which is tough.
RECOGNIZING A STROKE: Remember the "4" steps, STRT . Sometimes symptoms of a stroke are difficult to identify. Unfortunately, the lack of awareness spells disaster. The stroke victim may suffer severe brain damage when people nearby fail to recognize the symptoms of a stroke . Now doctors say a bystander can recognize a stroke by asking three simple questions:
S * Ask the individual to SMILE.
T * Ask the person to TALK and SPEAK A SIMPLE SENTENCE (Coherently) (i.e. It is sunny out today)
R * Ask him or her to RAISE BOTH ARMS. If he or she has trouble with ANY ONE of these tasks, call 999/911 immediately and describe the symptoms to the dispatcher.
T * Ask the person to STICK OUT YOUR TONGUE. If the tongue is crooked, if it goes to one side or the other , that is also an indication of a stroke. A cardiologist says if everyone who reads this sends it to 10 people; you can bet that at least one life will be saved.
This is worth sharing. STROKE: Remember These Four Letters.... S.T.R.T.
A neurologist says that if he can get to a stroke victim within 3 hours he can totally reverse the effects of a stroke... totally . He said the trick was getting a stroke recognized, diagnosed, and then getting the patient medically cared for within 3 hours, which is tough.
RECOGNIZING A STROKE: Remember the "4" steps, STRT . Sometimes symptoms of a stroke are difficult to identify. Unfortunately, the lack of awareness spells disaster. The stroke victim may suffer severe brain damage when people nearby fail to recognize the symptoms of a stroke . Now doctors say a bystander can recognize a stroke by asking three simple questions:
S * Ask the individual to SMILE.
T * Ask the person to TALK and SPEAK A SIMPLE SENTENCE (Coherently) (i.e. It is sunny out today)
R * Ask him or her to RAISE BOTH ARMS. If he or she has trouble with ANY ONE of these tasks, call 999/911 immediately and describe the symptoms to the dispatcher.
T * Ask the person to STICK OUT YOUR TONGUE. If the tongue is crooked, if it goes to one side or the other , that is also an indication of a stroke. A cardiologist says if everyone who reads this sends it to 10 people; you can bet that at least one life will be saved.
Friday, March 14, 2008
Dickie Scruggs
So, what do you all think of the Dickie Scruggs debacle? Do you think his son was also guilty? Again, it's the wife who will bear the emotional brunt. Diane typed Dickie's way through law school. At least she will be comfortable while waiting for him to get out of prison. However, he isn't going to pass Go, and he's certainly not going to collect $200.
Monday, March 10, 2008
RULE 1.3 DILIGENCE; RULE 1.4 COMMUNICATION; AND RULE 1.5 FEES
.
These will be the last rules posted because those already posted represent the areas most likely to have been controversial. Those that won't be posted include:
1.6 Confidentiality of Information.
1.7 Conflict of Interest: General Rule.
1.8 Conflict of Interests: Prohibited Transactions.
1.9 Conflict of Interest: Former Client.
1.10 Imputed Disqualification: General Rule.
1.11 Successive Government and Private Employment.
1.12 Former Judge or Arbitrator.
1.13 Organization as Client.
1.14 Client Under a Disability.
1.15 Safekeeping Property.Mississippi IOLTA Program Notice of Election.
1.16 Declining or Terminating Representation.
1.17 Sale of Law Practice.
If anybody is dying to read any of these, just say so. I will not be sitting around holding my breath waiting for a request. This whole effort is to educate all of us in an area we probably knew nothing about when we started. Now the Sur-Realist finished with this and will go on to something else. Probably.
RULE 1.3 DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction
or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures
are required to vindicate a client’s cause or endeavor. A lawyer should act with commitment
and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.
However, a lawyer is not bound to press for every advantage that might be realized for a
client. A lawyer has professional discretion in determining the means by which a matter
should be pursued. See Rule 1.2. A lawyer’s workload should be controlled so that each
matter can be handled adequately.
Perhaps no professional shortcoming is more widely resented than procrastination.
A client’s interests often can be adversely affected by the passage of time or the change of
conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the
client’s legal position may be destroyed. Even when the client’s interests are not affected in
substances, however, unreasonable delay can cause a client needless anxiety and undermine
confidence in the lawyer’s trustworthiness.
Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry
through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited
to a specific matter, the relationship terminates when the matter has been resolved. If a
lawyer has served a client over a substantial period in a variety of matters, the client
sometimes may assume that the lawyer will continue to serve on a continuing basis unless
the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still
exists should be clarified by the lawyer, preferably in writing, so that the client will not
mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased
to do so. For example, if a lawyer has handled a judicial or administrative proceeding that
produced a result adverse to the client but has not been specifically instructed concerning
pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before
relinquishing responsibility for the matter.
Code Comparison
DR 6-101(A)(3) requires that a lawyer not "neglect a legal matter entrusted to him."
EC 6-4 states that a lawyer should "give appropriate attention to his legal work." Canon 7
states that "a lawyer should represent a client zealously within the bounds of the law." DR
7-101(A)(1) provides that "a lawyer shall not intentionally . . . fail to seek the lawful
objectives of his client through reasonably available means permitted by law and the
Disciplinary Rules. . . ." DR 7-101(A)(3) provides that "a lawyer shall not intentionally . . .
prejudice or damage his client during the course of the professional relationship. . . ."
RULE 1.4 COMMUNICATION
(a) A lawyer shall keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
Comment
The client should have sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which they are to be
pursued, to the extent the client is willing and able to do so. For example, a lawyer
negotiating on behalf of a client should provide the client with facts relevant to the matter,
inform the client of communications from another party and take other reasonable steps that
permit the client to make a decision regarding a serious offer from another party. A lawyer
who receives from opposing counsel an offer of settlement in a civil controversy or a
proffered plea bargain in a criminal case should promptly inform the client of its substance
unless prior discussions with the client have left it clear that the proposal will be
unacceptable. See Rule 1.2(a). Even when a client delegates authority to the lawyer, the
client should be kept advised of the status of the matter.
Adequacy of communication depends in part on the kind of advice or assistance
involved. For example, in negotiations where there is time to explain a proposal, the lawyer
should review all important provisions with the client before proceeding to an agreement.
In litigation a lawyer should explain the general strategy and prospects of success and
ordinarily should consult the client on tactics that might injury or coerce others. On the other
hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail.
The guiding principle is that the lawyer should fulfill reasonable client expectations for
information consistent with the duty to act in the client’s best interests, and the client’s
overall requirements as to the character of representation.
Ordinarily, the information to be provided is that appropriate for a client who is a
comprehending and responsible adult. However, fully informing the client according to this
standard may be impracticable, for example, where the client is a child or suffers from mental
disability. See Rule 1.14. When the client is an organization or group, it is often impossible
or inappropriate to inform every one of its members about its legal affairs; ordinarily, the
lawyer should address communications to the appropriate officials of the organization. See
Rule 1.13. Where many routine matters are involved, a system of limited or occasional
reporting may be arranged with the client. Practical exigency may also require a lawyer to
act for a client without prior consultation.
Withholding Information. In some circumstances, a lawyer may be justified in
delaying transmission of information when the client would be likely to react imprudently
to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of
a client when the examining psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer’s own interest or convenience.
Rules or court orders governing litigation may provide that information supplied to a lawyer
may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
Code Comparison
This Rule has no direct counterpart in the Disciplinary Rules of the Code.
DR 6-101(A)(3) provides that a lawyer shall not "neglect a legal matter entrusted to him."
DR 9-102(B)(1) provides that a lawyer "shall promptly notify a client of the receipt of his
funds, securities, or other properties." EC 7-8 states that "a lawyer should exert his best
efforts to insure that decisions of his client are made only after the client has been informed
of relevant considerations." EC 9-2 states that "a lawyer should fully and promptly inform
his client of material developments in the matters being handled for the client."
RULE 1.5 FEES
(a) A lawyer's fee shall be reasonable. 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) When the lawyer has not regularly represented the client, the basis or rate of the
fee shall be communicated to the client, preferably in writing, before or within a reasonable
time after commencing the representation.
(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 writing 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. 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.
(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 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,
by written agreement with the client, each lawyer assumes joint responsibility for the
representation;
(2) the client is advised of and does not object to the participation of all the
lawyers involved; and
(3) the total fee is reasonable.
Comment
Basis or Rate of Fee. When the lawyer has regularly represented a client, they
ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a
20
new client-lawyer relationship, however, an understanding as to the fee should be promptly
established. It is not necessary to recite all the factors that that underlie the basis of the fee,
but only those that are directly involved in its computation. It is sufficient, for example, to
state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to
identify the factors that may be taken into account in finally fixing the fee. When
developments occur during the representation that render an earlier estimate substantially
inaccurate, a revised estimate should be provided to the client. A written statement
concerning the fee reduces the possibility of a misunderstanding. Furnishing the client with
a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the
basis or rate of the fee is set forth.
Terms of Payment. A lawyer may require advance payment of a fee, but is obliged
to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment
for services, such as an ownership interest in an enterprise, providing this does not involve
acquisition of a proprietary interest in the cause of action or subject matter of the litigation
contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to
special scrutiny because it involves questions concerning both the value of the services and
the lawyer’s special knowledge of the value of the property.
An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in such a way contrary to the client’s interest.
For example, a lawyer should not enter into an agreement whereby services are to be
provided only up to a stated amount when it is foreseeable that more extensive services will
probably be required, unless the situation is adequately explained to the client. Otherwise,
the client might have to bargain for further assistance in the midst of a proceeding or
transaction. However, it is proper to define the extent of services in light of the client’s
ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly
charges by using wasteful procedures. When there is doubt whether a contingent fee is
consistent with the client’s best interest, the lawyer should offer the client alternative bases
for the fee and explain their implications. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage.
Paragraph (d)(1) does not prohibit a contingent fee agreement for the collection of
past due alimony or support. See MSB Ethics Opinion No. 88.
Division of Fee. A division of fee is a single billing to a client covering the fee of two
or more lawyers who are not in the same firm. A division of fee facilitates association of
more than one lawyer in a matter in which neither alone could serve the client as well, and
most often is used when the fee is contingent and the division is between a referring lawyer
and a trial specialist. Paragraph (e) permits the lawyers to divide a fee on either the basis of
21
the proportion of services they render or by agreement between the participating lawyers if
all assume responsibility for the representation as a whole and the client is advised and does
not object. It does not require disclosure to the client of the share that each lawyer is to
receive. Joint responsibility for the representation entails the obligations stated in Rule 5.1
for purposes of the matter involved.
Disputes Over Fee. If a procedure has been established for resolution of fee disputes,
such as an arbitration or mediation procedure established by the bar, the lawyer should
conscientiously consider submitting to it. Law may prescribe a procedure for determining
a lawyer’s fee, for example, in representation of an executor or administrator, a class or a
person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled
to such a fee and a lawyer representing another party concerned with the fee should comply
with the prescribed procedure.
Code Comparison
DR 2-106(A) provides that "A lawyer shall not enter into an agreement for, charge,
or collect an illegal or clearly excessive fee." DR 2-106(B) provides that "A fee is clearly
excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with
a definite and firm conviction that the fee is in excess of a reasonable fee." DR 2-106(B)
further provides that "Factors to be considered . . . in determining . . . reasonableness . . .
include . . .: (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
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. (8) Whether the fee is fixed or contingent." The Rule
includes the factor of ability to pay; a person of ample means may justly be charged more for
a service, and a person of limited means less, other factors being the same. EC 2-17 states
that "A lawyer should not charge more than a reasonable fee. . . ."
There is no counterpart to Rule 1.5(b) in the Disciplinary Rules of the Code. EC 2-19
states that "It is usually beneficial to reduce to writing the understanding of the parties
concerning the fee, particularly when it is contingent."
With regard to Rule 1.5(c), DR 2-106(C) prohibits "a contingent fee in a criminal
case."
With regard to Rule 1.5(d), DR2-107(A) permits division of fees only if: "(1) The
client consents to employment of the other lawyer after a full disclosure that a division of
fees will be made. (2) The division is in proportion to the services performed and
responsibility assumed by each. (3) The total fee does not exceed clearly reasonable
compensation. . . ." Rule 1.5(d) permits division without regard to the services rendered by
each lawyer if they assume joint responsibility for the representation.
See also MSB Ethics Opinion Nos. 40, 59, 88, 91, 92 and 100.
These will be the last rules posted because those already posted represent the areas most likely to have been controversial. Those that won't be posted include:
1.6 Confidentiality of Information.
1.7 Conflict of Interest: General Rule.
1.8 Conflict of Interests: Prohibited Transactions.
1.9 Conflict of Interest: Former Client.
1.10 Imputed Disqualification: General Rule.
1.11 Successive Government and Private Employment.
1.12 Former Judge or Arbitrator.
1.13 Organization as Client.
1.14 Client Under a Disability.
1.15 Safekeeping Property.Mississippi IOLTA Program Notice of Election.
1.16 Declining or Terminating Representation.
1.17 Sale of Law Practice.
If anybody is dying to read any of these, just say so. I will not be sitting around holding my breath waiting for a request. This whole effort is to educate all of us in an area we probably knew nothing about when we started. Now the Sur-Realist finished with this and will go on to something else. Probably.
RULE 1.3 DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction
or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures
are required to vindicate a client’s cause or endeavor. A lawyer should act with commitment
and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.
However, a lawyer is not bound to press for every advantage that might be realized for a
client. A lawyer has professional discretion in determining the means by which a matter
should be pursued. See Rule 1.2. A lawyer’s workload should be controlled so that each
matter can be handled adequately.
Perhaps no professional shortcoming is more widely resented than procrastination.
A client’s interests often can be adversely affected by the passage of time or the change of
conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the
client’s legal position may be destroyed. Even when the client’s interests are not affected in
substances, however, unreasonable delay can cause a client needless anxiety and undermine
confidence in the lawyer’s trustworthiness.
Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry
through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited
to a specific matter, the relationship terminates when the matter has been resolved. If a
lawyer has served a client over a substantial period in a variety of matters, the client
sometimes may assume that the lawyer will continue to serve on a continuing basis unless
the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still
exists should be clarified by the lawyer, preferably in writing, so that the client will not
mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased
to do so. For example, if a lawyer has handled a judicial or administrative proceeding that
produced a result adverse to the client but has not been specifically instructed concerning
pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before
relinquishing responsibility for the matter.
Code Comparison
DR 6-101(A)(3) requires that a lawyer not "neglect a legal matter entrusted to him."
EC 6-4 states that a lawyer should "give appropriate attention to his legal work." Canon 7
states that "a lawyer should represent a client zealously within the bounds of the law." DR
7-101(A)(1) provides that "a lawyer shall not intentionally . . . fail to seek the lawful
objectives of his client through reasonably available means permitted by law and the
Disciplinary Rules. . . ." DR 7-101(A)(3) provides that "a lawyer shall not intentionally . . .
prejudice or damage his client during the course of the professional relationship. . . ."
RULE 1.4 COMMUNICATION
(a) A lawyer shall keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
Comment
The client should have sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which they are to be
pursued, to the extent the client is willing and able to do so. For example, a lawyer
negotiating on behalf of a client should provide the client with facts relevant to the matter,
inform the client of communications from another party and take other reasonable steps that
permit the client to make a decision regarding a serious offer from another party. A lawyer
who receives from opposing counsel an offer of settlement in a civil controversy or a
proffered plea bargain in a criminal case should promptly inform the client of its substance
unless prior discussions with the client have left it clear that the proposal will be
unacceptable. See Rule 1.2(a). Even when a client delegates authority to the lawyer, the
client should be kept advised of the status of the matter.
Adequacy of communication depends in part on the kind of advice or assistance
involved. For example, in negotiations where there is time to explain a proposal, the lawyer
should review all important provisions with the client before proceeding to an agreement.
In litigation a lawyer should explain the general strategy and prospects of success and
ordinarily should consult the client on tactics that might injury or coerce others. On the other
hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail.
The guiding principle is that the lawyer should fulfill reasonable client expectations for
information consistent with the duty to act in the client’s best interests, and the client’s
overall requirements as to the character of representation.
Ordinarily, the information to be provided is that appropriate for a client who is a
comprehending and responsible adult. However, fully informing the client according to this
standard may be impracticable, for example, where the client is a child or suffers from mental
disability. See Rule 1.14. When the client is an organization or group, it is often impossible
or inappropriate to inform every one of its members about its legal affairs; ordinarily, the
lawyer should address communications to the appropriate officials of the organization. See
Rule 1.13. Where many routine matters are involved, a system of limited or occasional
reporting may be arranged with the client. Practical exigency may also require a lawyer to
act for a client without prior consultation.
Withholding Information. In some circumstances, a lawyer may be justified in
delaying transmission of information when the client would be likely to react imprudently
to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of
a client when the examining psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer’s own interest or convenience.
Rules or court orders governing litigation may provide that information supplied to a lawyer
may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
Code Comparison
This Rule has no direct counterpart in the Disciplinary Rules of the Code.
DR 6-101(A)(3) provides that a lawyer shall not "neglect a legal matter entrusted to him."
DR 9-102(B)(1) provides that a lawyer "shall promptly notify a client of the receipt of his
funds, securities, or other properties." EC 7-8 states that "a lawyer should exert his best
efforts to insure that decisions of his client are made only after the client has been informed
of relevant considerations." EC 9-2 states that "a lawyer should fully and promptly inform
his client of material developments in the matters being handled for the client."
RULE 1.5 FEES
(a) A lawyer's fee shall be reasonable. 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) When the lawyer has not regularly represented the client, the basis or rate of the
fee shall be communicated to the client, preferably in writing, before or within a reasonable
time after commencing the representation.
(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 writing 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. 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.
(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 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,
by written agreement with the client, each lawyer assumes joint responsibility for the
representation;
(2) the client is advised of and does not object to the participation of all the
lawyers involved; and
(3) the total fee is reasonable.
Comment
Basis or Rate of Fee. When the lawyer has regularly represented a client, they
ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a
20
new client-lawyer relationship, however, an understanding as to the fee should be promptly
established. It is not necessary to recite all the factors that that underlie the basis of the fee,
but only those that are directly involved in its computation. It is sufficient, for example, to
state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to
identify the factors that may be taken into account in finally fixing the fee. When
developments occur during the representation that render an earlier estimate substantially
inaccurate, a revised estimate should be provided to the client. A written statement
concerning the fee reduces the possibility of a misunderstanding. Furnishing the client with
a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the
basis or rate of the fee is set forth.
Terms of Payment. A lawyer may require advance payment of a fee, but is obliged
to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment
for services, such as an ownership interest in an enterprise, providing this does not involve
acquisition of a proprietary interest in the cause of action or subject matter of the litigation
contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to
special scrutiny because it involves questions concerning both the value of the services and
the lawyer’s special knowledge of the value of the property.
An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in such a way contrary to the client’s interest.
For example, a lawyer should not enter into an agreement whereby services are to be
provided only up to a stated amount when it is foreseeable that more extensive services will
probably be required, unless the situation is adequately explained to the client. Otherwise,
the client might have to bargain for further assistance in the midst of a proceeding or
transaction. However, it is proper to define the extent of services in light of the client’s
ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly
charges by using wasteful procedures. When there is doubt whether a contingent fee is
consistent with the client’s best interest, the lawyer should offer the client alternative bases
for the fee and explain their implications. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage.
Paragraph (d)(1) does not prohibit a contingent fee agreement for the collection of
past due alimony or support. See MSB Ethics Opinion No. 88.
Division of Fee. A division of fee is a single billing to a client covering the fee of two
or more lawyers who are not in the same firm. A division of fee facilitates association of
more than one lawyer in a matter in which neither alone could serve the client as well, and
most often is used when the fee is contingent and the division is between a referring lawyer
and a trial specialist. Paragraph (e) permits the lawyers to divide a fee on either the basis of
21
the proportion of services they render or by agreement between the participating lawyers if
all assume responsibility for the representation as a whole and the client is advised and does
not object. It does not require disclosure to the client of the share that each lawyer is to
receive. Joint responsibility for the representation entails the obligations stated in Rule 5.1
for purposes of the matter involved.
Disputes Over Fee. If a procedure has been established for resolution of fee disputes,
such as an arbitration or mediation procedure established by the bar, the lawyer should
conscientiously consider submitting to it. Law may prescribe a procedure for determining
a lawyer’s fee, for example, in representation of an executor or administrator, a class or a
person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled
to such a fee and a lawyer representing another party concerned with the fee should comply
with the prescribed procedure.
Code Comparison
DR 2-106(A) provides that "A lawyer shall not enter into an agreement for, charge,
or collect an illegal or clearly excessive fee." DR 2-106(B) provides that "A fee is clearly
excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with
a definite and firm conviction that the fee is in excess of a reasonable fee." DR 2-106(B)
further provides that "Factors to be considered . . . in determining . . . reasonableness . . .
include . . .: (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
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. (8) Whether the fee is fixed or contingent." The Rule
includes the factor of ability to pay; a person of ample means may justly be charged more for
a service, and a person of limited means less, other factors being the same. EC 2-17 states
that "A lawyer should not charge more than a reasonable fee. . . ."
There is no counterpart to Rule 1.5(b) in the Disciplinary Rules of the Code. EC 2-19
states that "It is usually beneficial to reduce to writing the understanding of the parties
concerning the fee, particularly when it is contingent."
With regard to Rule 1.5(c), DR 2-106(C) prohibits "a contingent fee in a criminal
case."
With regard to Rule 1.5(d), DR2-107(A) permits division of fees only if: "(1) The
client consents to employment of the other lawyer after a full disclosure that a division of
fees will be made. (2) The division is in proportion to the services performed and
responsibility assumed by each. (3) The total fee does not exceed clearly reasonable
compensation. . . ." Rule 1.5(d) permits division without regard to the services rendered by
each lawyer if they assume joint responsibility for the representation.
See also MSB Ethics Opinion Nos. 40, 59, 88, 91, 92 and 100.
Sunday, March 9, 2008
RULE 1.1 COMPETENCE & RULE 1.2 SCOPE OF REPRESENTATION
See? I told you this stuff was boring! But you and I both need to be properly educated about duties and responsibilities of our attorneys. So, no, Anonymouse, I'm not a Big Baby. I'm a citizen who expects people to put their money where their mouth is. By that I mean:
a: Loyalty before everything but honor. If you are someone's friend, be a friend unless it requires you to compromise your own honor. Being a supportive friend to Wes Teel does not require me to compromise myself in any fashion.
b. If you are going to make accusations and allegations about a person, then cite the specific rule he has broken. We hear a lot of comments that he was a bad lawyer. Put your money where your mouth is. Just losing your case doesn't make an attorney a bad lawyer. Give a substantive reason to back up your opinion.
(P.S. I'm sorry this prints out with such gaps on the lines. It doesn't look this way when I put it in the box.)
CLIENT-LAWYER RELATIONSHIP
RULE 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.
Comment
Legal Knowledge and Skill. In determining whether a lawyer employs the requisite
knowledge and skill in a particular matter, relevant factors include the relative complexity
and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training
and experience in the field in question, the preparation and study the lawyer is able to give
the matter and whether it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In many instances the required
proficiency is that of a general practitioner. Expertise in a particular field of law may be
required in some circumstances.
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 newly admitted lawyer can be as
competent as a practitioner with long experience. Some important skills, such as the analysis
of precedent, the evaluation of evidence and legal drafting, are required in all legal problems.
Perhaps the most fundamental legal skill consists of determining what kind of legal problems
a situation may involve, a skill that necessarily transcends any particular specialized
knowledge. A lawyer can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the association of
a lawyer of established competence in the field in question.
In an emergency a lawyer may give advice or assistance in a matter in which the 12
lawyer does not have the skill ordinarily required where referral to or consultation or
association with another lawyer would be impractical. Even in an emergency, however,
assistance should be limited to that reasonably necessary in the circumstances, for ill
considered action under emergency conditions can jeopardize the client’s interest.
A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed as
counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation. Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of the problem, and use of methods
and procedures meeting the standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are determined in part by what is at
stake; major litigation and complex transactions ordinarily require more elaborate treatment
than matters of lesser consequence.
Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer
should engage in continuing study and education. If a system of peer review has been
established, the lawyer should consider making use of it in appropriate circumstances.
Code Comparison
DR 6-101(A)(1) provides that a lawyer shall not handle a matter "which he knows or
should know that he is not competent to handle, without associating with him a lawyer who
is competent to handle it." DR 6-101(A)(2) requires "preparation adequate in the
circumstances"; Rule 1.1 more fully particularizes the elements of competence.
RULE 1.2 SCOPE OF REPRESENTATION
(a) A lawyer shall abide by a client's decisions concerning the objectives of
representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to
the means by which they are to be pursued. A lawyer shall abide by a client's decision
whether to accept an offer of settlement of a matter. In a criminal case, a lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether
to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment,
does not constitute an endorsement of the client's political, economic, social or moral views
or activities.
13
(c) A lawyer may limit the objectives of the representation if the client gives informed
consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that a
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.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules
of Professional Conduct or other law, the lawyer shall consult with the client regarding the
relevant limitations on the lawyer's conduct.
[Amended effective November 3, 2005]
Comment
Scope of Representation. Both lawyer and client have authority and responsibility
in the objectives and means of representation. The client has ultimate authority to determine
the purposes to be served by legal representation, within the limits imposed by law and the
lawyer’s professional obligations. At the same time, a lawyer is not required to pursue
objectives or employ means simply because a client may wish that the lawyer do so. A clear
distinction between objectives and means sometimes cannot be drawn, and in many cases the
client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer
should assume responsibility for technical and legal tactical issues, but should defer to the
client regarding such questions as the expense to be incurred and concern for third persons
who might be adversely affected. Law defining the lawyer’s scope of authority in litigation
varies among jurisdictions.
In a case in which the client appears to be suffering mental disability, the lawyer’s
duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.
Independence from Client’s Views or Activities. Legal representation should not
be denied to people who are unable to afford legal services, or whose cause is controversial
or the subject of popular disapproval. By the same token, representing a client does not
constitute approval of the client’s views or activities.
Services Limited in Objectives or Means. The objectives or scope of services
provided by a lawyer may be limited by agreement with the client or by the terms under
which the lawyer’s services are made available to the client. For example, a retainer may be
for a specifically defined purpose. Representation provided through a legal aid agency may
be subject to limitations on the types of cases the agency handles. When a lawyer has been
retained by an insurer to represent an insured, the representation may be limited to matters
related to the insurance coverage. The terms upon which representation is undertaken may
exclude specific objectives or means that the lawyer regards as imprudent.
An agreement concerning the scope of representation must accord with the Rules of
Professional Conduct and other law. Thus, the client may not be asked to agree to
representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate
the lawyer’s services or the right to settle litigation that the lawyer might wish to continue.
Criminal, Fraudulent and Prohibited Transactions. A lawyer is required to give
an honest opinion about the actual consequences that appear likely to result from a client’s
conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent
does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not
knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction
between presenting an analysis of legal aspects of questionable conduct and recommending
the means by which a crime or fraud might be committed with impunity.
When the client’s course of action has already begun and is continuing, the lawyer’s
responsibility is especially delicate. The lawyer is not permitted to reveal the client’s
wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid
furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may
not continue assisting a client in conduct that the lawyer originally supposes is legally proper,
but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore,
may be required.
Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
Paragraph (d) applies whether or not the defrauded party is a party to the transaction.
Hence, a lawyer should not participate in a sham transaction; for example, a transaction to
effectuate criminal or fraudulent escape of tax liability. Paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal services to a lawful
enterprise. The last clause of paragraph (d) recognizes that determining the validity or
interpretation of a statute or regulation may require a course of action involving disobedience
of the statute or regulation or of the interpretation placed upon it by governmental authorities.
Code Comparison
Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states
that "In certain areas of legal representation not affecting the merits of the cause or
substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his
own. But otherwise the authority to make decisions is exclusively that of the client. . . ." EC
7-8 states that "In the final analysis, however, the . . . decision whether to forego legally
available objectives or methods because of nonlegal factors is ultimately for the client. . . .
In the event that the client in a nonadjudicatory matter insists upon a course of conduct that
is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules,
the lawyer may withdraw from the employment." DR 7-101(A)(1) provides that "A lawyer
shall not intentionally . . . fail to seek the lawful objections of his client through reasonable
available means permitted by law. . . . A lawyer does not violate this Disciplinary Rule,
however, by . . . avoiding offensive tactics. . . ."
Rule 1.2(b) has no counterpart in the Code.
Rule 1.2(c) has no counterpart in the Code.
With regard to paragraph (d), DR 7-102(A)(7) provides that a lawyer shall not
"counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR
7-102(A)(6) provides that a lawyer shall not "participate in the creation or preservation of
evidence when he knows or it is obvious that the evidence is false." DR 7-106 provides that
"A lawyer shall not . . . advise his client to disregard a standing rule of a tribunal . . . but he
may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5
states that "A lawyer should never encourage or aid his client to commit criminal acts or
counsel his client on how to violate the law and avoid punishment therefor."
With regard to Rule 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdraw
from representation if a client "insists" that the lawyer engage in "conduct that is illegal or
that is prohibited under the Disciplinary Rules." DR 9-101(C) provides that "a lawyer shall
not state or imply that he is able to influence improperly . . . any tribunal, legislative body or
public official."
See also MSB Ethics Opinion No. 92.
Next post will be Rule 1.3
a: Loyalty before everything but honor. If you are someone's friend, be a friend unless it requires you to compromise your own honor. Being a supportive friend to Wes Teel does not require me to compromise myself in any fashion.
b. If you are going to make accusations and allegations about a person, then cite the specific rule he has broken. We hear a lot of comments that he was a bad lawyer. Put your money where your mouth is. Just losing your case doesn't make an attorney a bad lawyer. Give a substantive reason to back up your opinion.
(P.S. I'm sorry this prints out with such gaps on the lines. It doesn't look this way when I put it in the box.)
CLIENT-LAWYER RELATIONSHIP
RULE 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.
Comment
Legal Knowledge and Skill. In determining whether a lawyer employs the requisite
knowledge and skill in a particular matter, relevant factors include the relative complexity
and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training
and experience in the field in question, the preparation and study the lawyer is able to give
the matter and whether it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In many instances the required
proficiency is that of a general practitioner. Expertise in a particular field of law may be
required in some circumstances.
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 newly admitted lawyer can be as
competent as a practitioner with long experience. Some important skills, such as the analysis
of precedent, the evaluation of evidence and legal drafting, are required in all legal problems.
Perhaps the most fundamental legal skill consists of determining what kind of legal problems
a situation may involve, a skill that necessarily transcends any particular specialized
knowledge. A lawyer can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the association of
a lawyer of established competence in the field in question.
In an emergency a lawyer may give advice or assistance in a matter in which the 12
lawyer does not have the skill ordinarily required where referral to or consultation or
association with another lawyer would be impractical. Even in an emergency, however,
assistance should be limited to that reasonably necessary in the circumstances, for ill
considered action under emergency conditions can jeopardize the client’s interest.
A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed as
counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation. Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of the problem, and use of methods
and procedures meeting the standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are determined in part by what is at
stake; major litigation and complex transactions ordinarily require more elaborate treatment
than matters of lesser consequence.
Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer
should engage in continuing study and education. If a system of peer review has been
established, the lawyer should consider making use of it in appropriate circumstances.
Code Comparison
DR 6-101(A)(1) provides that a lawyer shall not handle a matter "which he knows or
should know that he is not competent to handle, without associating with him a lawyer who
is competent to handle it." DR 6-101(A)(2) requires "preparation adequate in the
circumstances"; Rule 1.1 more fully particularizes the elements of competence.
RULE 1.2 SCOPE OF REPRESENTATION
(a) A lawyer shall abide by a client's decisions concerning the objectives of
representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to
the means by which they are to be pursued. A lawyer shall abide by a client's decision
whether to accept an offer of settlement of a matter. In a criminal case, a lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether
to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment,
does not constitute an endorsement of the client's political, economic, social or moral views
or activities.
13
(c) A lawyer may limit the objectives of the representation if the client gives informed
consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that a
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.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules
of Professional Conduct or other law, the lawyer shall consult with the client regarding the
relevant limitations on the lawyer's conduct.
[Amended effective November 3, 2005]
Comment
Scope of Representation. Both lawyer and client have authority and responsibility
in the objectives and means of representation. The client has ultimate authority to determine
the purposes to be served by legal representation, within the limits imposed by law and the
lawyer’s professional obligations. At the same time, a lawyer is not required to pursue
objectives or employ means simply because a client may wish that the lawyer do so. A clear
distinction between objectives and means sometimes cannot be drawn, and in many cases the
client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer
should assume responsibility for technical and legal tactical issues, but should defer to the
client regarding such questions as the expense to be incurred and concern for third persons
who might be adversely affected. Law defining the lawyer’s scope of authority in litigation
varies among jurisdictions.
In a case in which the client appears to be suffering mental disability, the lawyer’s
duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.
Independence from Client’s Views or Activities. Legal representation should not
be denied to people who are unable to afford legal services, or whose cause is controversial
or the subject of popular disapproval. By the same token, representing a client does not
constitute approval of the client’s views or activities.
Services Limited in Objectives or Means. The objectives or scope of services
provided by a lawyer may be limited by agreement with the client or by the terms under
which the lawyer’s services are made available to the client. For example, a retainer may be
for a specifically defined purpose. Representation provided through a legal aid agency may
be subject to limitations on the types of cases the agency handles. When a lawyer has been
retained by an insurer to represent an insured, the representation may be limited to matters
related to the insurance coverage. The terms upon which representation is undertaken may
exclude specific objectives or means that the lawyer regards as imprudent.
An agreement concerning the scope of representation must accord with the Rules of
Professional Conduct and other law. Thus, the client may not be asked to agree to
representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate
the lawyer’s services or the right to settle litigation that the lawyer might wish to continue.
Criminal, Fraudulent and Prohibited Transactions. A lawyer is required to give
an honest opinion about the actual consequences that appear likely to result from a client’s
conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent
does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not
knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction
between presenting an analysis of legal aspects of questionable conduct and recommending
the means by which a crime or fraud might be committed with impunity.
When the client’s course of action has already begun and is continuing, the lawyer’s
responsibility is especially delicate. The lawyer is not permitted to reveal the client’s
wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid
furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may
not continue assisting a client in conduct that the lawyer originally supposes is legally proper,
but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore,
may be required.
Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
Paragraph (d) applies whether or not the defrauded party is a party to the transaction.
Hence, a lawyer should not participate in a sham transaction; for example, a transaction to
effectuate criminal or fraudulent escape of tax liability. Paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal services to a lawful
enterprise. The last clause of paragraph (d) recognizes that determining the validity or
interpretation of a statute or regulation may require a course of action involving disobedience
of the statute or regulation or of the interpretation placed upon it by governmental authorities.
Code Comparison
Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states
that "In certain areas of legal representation not affecting the merits of the cause or
substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his
own. But otherwise the authority to make decisions is exclusively that of the client. . . ." EC
7-8 states that "In the final analysis, however, the . . . decision whether to forego legally
available objectives or methods because of nonlegal factors is ultimately for the client. . . .
In the event that the client in a nonadjudicatory matter insists upon a course of conduct that
is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules,
the lawyer may withdraw from the employment." DR 7-101(A)(1) provides that "A lawyer
shall not intentionally . . . fail to seek the lawful objections of his client through reasonable
available means permitted by law. . . . A lawyer does not violate this Disciplinary Rule,
however, by . . . avoiding offensive tactics. . . ."
Rule 1.2(b) has no counterpart in the Code.
Rule 1.2(c) has no counterpart in the Code.
With regard to paragraph (d), DR 7-102(A)(7) provides that a lawyer shall not
"counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR
7-102(A)(6) provides that a lawyer shall not "participate in the creation or preservation of
evidence when he knows or it is obvious that the evidence is false." DR 7-106 provides that
"A lawyer shall not . . . advise his client to disregard a standing rule of a tribunal . . . but he
may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5
states that "A lawyer should never encourage or aid his client to commit criminal acts or
counsel his client on how to violate the law and avoid punishment therefor."
With regard to Rule 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdraw
from representation if a client "insists" that the lawyer engage in "conduct that is illegal or
that is prohibited under the Disciplinary Rules." DR 9-101(C) provides that "a lawyer shall
not state or imply that he is able to influence improperly . . . any tribunal, legislative body or
public official."
See also MSB Ethics Opinion No. 92.
Next post will be Rule 1.3
Saturday, March 8, 2008
Duties of Attorneys
Your carping and complaints about Wes have made me question what really are the responsibilities and duties of an attorney to his/her clients. So I called the MS Bar Association and was directed to the MS Rules of Professional Conduct as set forth by the MS Supreme Court. I will be posting these rules bit by bit in the next few days for your edification. Here is the rule: From now on, when you wish to make an accusation or allegation about Wes or just to gripe, bitch, or moan, the Sur-Realist would appreciate it if you would cite the exact number of the Rule that you believe Wes violated. Otherwise, we will think it’s the same person complaining about the same old sour grapes. Just for the record, these rules make for very boring reading, and there is NO rule that every attorney has to win every case.
MISSISSIPPI RULES OF
PROFESSIONAL CONDUCT
Effective July 1, 1987
PREAMBLE: A LAWYER'S RESPONSIBILITIES
A lawyer is a representative of clients, an officer of the legal system and a public
citizen having special responsibility for the quality of justice. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.
In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See Rule 8.4. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold
legal process. As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal
profession. As a member of a learned profession, a lawyer should cultivate knowledge of
the law beyond its use for clients; employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance and. Therefore, all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all those who, because of economic or social barriers, cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.
A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to zealously protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system. The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of the responsibility compromises the independence of the profession and the public interest which it serves. Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
[Amended effective November 3, 2005 to address lawyers’ responsibilities as arbitrators,
mediators and other third party neutrals and to emphasize lawyers’ responsibilities to
promote public understanding of the rule of law and promoting equal access to the legal
system.]
SCOPE
The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. Compliance with the Rules, as with all laws in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in the private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intra governmental legal controversies where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges. The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure. The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative. Research notes were prepared to compare counterparts in the Mississippi Code of Professional Responsibility (adopted 1971, as amended) and to provide selected references
to other authorities. The notes have not been adopted, do not constitute part of the Rules and are not intended to affect the application or interpretation of the Rules and Comments. [Amended effective November 3, 2005 to make technical changes in text.]
TERMINOLOGY
"Belief" or "Believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances. "Confirmed in writing," when used in reference to the informed consent of a person denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. "Consult" or "Consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
"Firm" or "law firm" denotes a lawyer or lawyers in a partnership, professional
corporation, professional association, professional limited liability company, sole
proprietorship, governmental agency, or other association whose members are authorized to
practice law; or lawyers employed in a legal services organization or the legal department of
a corporation or other organization.
"Fraud" or "Fraudulent" denotes conduct having a purpose to deceive and not merely
negligent misrepresentation or failure to apprise another of relevant information.
"Informed consent" denotes voluntary acceptance and agreement by a person of a
proposed course of conduct after adequate information has been imparted to the person that
allows the person to arrive at a decision.
"Knowingly," "Known," or "Knows" denotes actual knowledge of the fact in question.
A person's knowledge may be inferred from circumstances.
"Partner" denotes the member of a partnership and, a shareholder in a law firm
organized as a professional corporation, professional association, or a member of a
professional limited liability company or an entity whose members are authorized to practice law.
"Reasonable" or "Reasonably" when used in relation to conduct by a lawyer denotes
the conduct of a reasonably prudent and competent lawyer.
"Reasonable belief" or "Reasonably believes" when used in reference to a lawyer
denotes that the lawyer believes the matter in question and that the circumstances are such
that the belief is reasonable.
"Reasonably should know" when used in reference to a lawyer denotes that a lawyer
of reasonable prudence and competence would ascertain the matter in question.
"Screened" denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably adequate under
the circumstances to protect information that the isolated lawyer is obligated to protect under
these Rules or other law.
"Substantial" when used in reference to degree or extent denotes a material matter of
clear and weighty importance.
MISSISSIPPI RULES OF
PROFESSIONAL CONDUCT
Effective July 1, 1987
PREAMBLE: A LAWYER'S RESPONSIBILITIES
A lawyer is a representative of clients, an officer of the legal system and a public
citizen having special responsibility for the quality of justice. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.
In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See Rule 8.4. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold
legal process. As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal
profession. As a member of a learned profession, a lawyer should cultivate knowledge of
the law beyond its use for clients; employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance and. Therefore, all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all those who, because of economic or social barriers, cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.
A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to zealously protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system. The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of the responsibility compromises the independence of the profession and the public interest which it serves. Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
[Amended effective November 3, 2005 to address lawyers’ responsibilities as arbitrators,
mediators and other third party neutrals and to emphasize lawyers’ responsibilities to
promote public understanding of the rule of law and promoting equal access to the legal
system.]
SCOPE
The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. Compliance with the Rules, as with all laws in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in the private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intra governmental legal controversies where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges. The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure. The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative. Research notes were prepared to compare counterparts in the Mississippi Code of Professional Responsibility (adopted 1971, as amended) and to provide selected references
to other authorities. The notes have not been adopted, do not constitute part of the Rules and are not intended to affect the application or interpretation of the Rules and Comments. [Amended effective November 3, 2005 to make technical changes in text.]
TERMINOLOGY
"Belief" or "Believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances. "Confirmed in writing," when used in reference to the informed consent of a person denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. "Consult" or "Consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
"Firm" or "law firm" denotes a lawyer or lawyers in a partnership, professional
corporation, professional association, professional limited liability company, sole
proprietorship, governmental agency, or other association whose members are authorized to
practice law; or lawyers employed in a legal services organization or the legal department of
a corporation or other organization.
"Fraud" or "Fraudulent" denotes conduct having a purpose to deceive and not merely
negligent misrepresentation or failure to apprise another of relevant information.
"Informed consent" denotes voluntary acceptance and agreement by a person of a
proposed course of conduct after adequate information has been imparted to the person that
allows the person to arrive at a decision.
"Knowingly," "Known," or "Knows" denotes actual knowledge of the fact in question.
A person's knowledge may be inferred from circumstances.
"Partner" denotes the member of a partnership and, a shareholder in a law firm
organized as a professional corporation, professional association, or a member of a
professional limited liability company or an entity whose members are authorized to practice law.
"Reasonable" or "Reasonably" when used in relation to conduct by a lawyer denotes
the conduct of a reasonably prudent and competent lawyer.
"Reasonable belief" or "Reasonably believes" when used in reference to a lawyer
denotes that the lawyer believes the matter in question and that the circumstances are such
that the belief is reasonable.
"Reasonably should know" when used in reference to a lawyer denotes that a lawyer
of reasonable prudence and competence would ascertain the matter in question.
"Screened" denotes the isolation of a lawyer from any participation in a matter
through the timely imposition of procedures within a firm that are reasonably adequate under
the circumstances to protect information that the isolated lawyer is obligated to protect under
these Rules or other law.
"Substantial" when used in reference to degree or extent denotes a material matter of
clear and weighty importance.
Wednesday, March 5, 2008
A Public Service Message - How to Protect Yourself From Rapists
I received this information by email, and it seemed too important to keep to myself. Please pass it on to others, perhaps to post in offices or in the ladies' rest rooms at your office or place of work. We can work together to keep our friends and neighbors a little safer.
A group of rapists and date rapists in prison were interviewed on what they look for in a potential victim and here are some interesting facts:
1). Rapists look for potential victims with certain hairstyles, such as a ponytail, long hair, braid or hairstyle that can easily be grabbed.
2). They look for women whose clothing is easy to remove quickly.
3). They look for women on their cell phone, searching through their purse, or doing other activities while walking, because they are off-guard and can be easily overpowered.
4). Men are most likely to attack & rape between 5:00 a.m. and 8:30 a.m.
5). The #1 place women are abducted/attacked is grocery store parking lots. #2: office parking lots/garages. #3: public restrooms.
6). A rapists are looking to grab a woman and quickly move her to another location where they don't have to worry about getting caught.
7). Only 2% of rapists said they carried weapons, because rape carries a 3-5 year sentence but rape with a weapon is 15-20 years.
8). If you put up any kind of a fight at all, they get discouraged because it only takes a minute or two for them to realize that going after you isn't worth it because it will be time-consuming.
9). Rapists said they would not pick on women who have umbrellas, or other similar objects that can be used from a distance, in their hands. Keys are not a deterrent because you have to get really close to the attacker to use them as a weapon. So, the idea is to convince these guys you're not worth it.
10). If someone is following behind you on a street, in a garage, or with you in an elevator or stairwell, look them in the face and ask them a question, like what time is it, or make general small talk: Now you've seen their face and could identify them in a line-up; you lose appeal as a target. 11). If someone is coming toward you, hold out your hands in front of you and yell STOP or STAY BACK! Most of the rapists said they'd leave a woman alone if she yelled or showed that she would not be afraid to fight back, since they are looking for an EASY target.
12). If you carry pepper spray yell I HAVE PEPPER SPRAY and holding it out will be a deterrent.
13). If someone grabs you, you can't beat them with strength but you can by outsmarting them. If you are grabbed around the waist from behind, pinch the attacker either under the arm (between the elbow and armpit) OR in the e upper inner thigh VERY VERY HARD. One woman used the underarm pinch on a guy who was trying to date rape her broke through the skin and tore out muscle strands - the guy needed stitches. Try pinching yourself in those places as hard as you can stand it - it hurts.
14). After the initial hit, always GO for the GROIN. You might think that you'll anger the guy and make him want to hurt you more, but the thing these rapists said are that they want a woman who will not caus e a lot of trouble. Start causing trouble and he's out of there.
15). When the guy puts his hands up to you, grab his first two fingers and bend them back as far as possible with as much pressure pushing down on them as possible.
16). Of course the things we always hear still apply. Always be aware of your surroundings, take someone with you if you can and if you see any odd behavior, don't dismiss it, go with your instincts!!! You may feel a little silly at the time, but you'd feel much worse if the guy really was trouble.
17. Tip from Tae Kwon Do: The elbow is the strongest point on your body. If you are close enough to use it, do!
18. If a robber asks for your wallet and/or purse, DO NOT HAND IT TO HIM. Toss it away from you....chances are that he is more interested in your wallet and/or purse than you, and he will go for the wallet /purse. RUN LIKE MAD IN THE OTHER DIRECTION!
19. If you are ever thrown into the trunk of a car, kick out the back tail lights and stick your arm out the hole and start waving like crazy. The driver won't see you, but everybody else will. This has saved lives.
20. Women have a tendency to get into their cars after shopping, eating, working, etc., and just sit (doing their checkbook, or making a list, etc.) DON'T DO THIS! The predator will be watching you, and this is the perfect opportunity for him to get in on the passenger side, put a gun to your head, and tell you where to go. AS SOON AS YOU GET INTO YOUR CAR, LOCK THE DOORS AND LEAVE.a. If someone is in the car with a gun to your head DO NOT DRIVE OFF, repeat: DO NOT DRIVE OFF! Instead gun the engine and speed into anything, wrecking the car. Your Air Bag will save you. If the person is in the back seat they will get the worst of it. As soon as the car crashes bail out and run. It is better than having them find your body in a remote location.
21. A few notes about getting into your car in a parking lot or parking garage:A.) Be aware: look around you, look into your car, on the floor, and in the back seat.B.) If you are parked next to a big van, enter your car from the passenger door. Most serial killers attack their victims by pulling them into their vans while the women are attempting to get into their cars.C.) Look at the car parked near your vehicle. If a male is sitting alone in the seat nearest your car, you may want to walk back into the mall, or work, and get a guard/policeman to walk you back out.IT IS ALWAYS BETTER TO BE paranoid than dead.
22. ALWAYS take the elevator instead of the stairs. (Stairwells are horrible places to be alone and the perfect crime spot, especially true at NIGHT!
23. If the predator has a gun and you are not under his control, ALWAYS RUN! The predator will only hit a running target 4 in 100 times. And even then, it most likely WILL NOT be a vital organ. RUN in a zigzag pattern!
24. Women are always trying to be sympathetic: STOP! It may get you raped or killed. Ted Bundy, the serial killer, ALWAYS played on the sympathies of unsuspecting women. He walked with a cane, or a limp, and asked 'for help' into his vehicle or with his vehicle, which is when he abducted his next victim.
25. A woman heard a crying baby on her porch and called the police because it was late and she thought it was weird. The police told her "DO NOT open the door."The lady said it sounded like the baby had crawled near a window, and she was worried it would crawl to the street and get run over. The policeman said, DO NOT open the door. A serial killer has a baby's cry recorded and uses it to coax women out of their homes. Several calls by women saying they hear baby's cries outside their doors were reported.The Crying Baby killer was also mentioned on America's Most Wanted.
If you can add something constructive to this, please feel free.
A group of rapists and date rapists in prison were interviewed on what they look for in a potential victim and here are some interesting facts:
1). Rapists look for potential victims with certain hairstyles, such as a ponytail, long hair, braid or hairstyle that can easily be grabbed.
2). They look for women whose clothing is easy to remove quickly.
3). They look for women on their cell phone, searching through their purse, or doing other activities while walking, because they are off-guard and can be easily overpowered.
4). Men are most likely to attack & rape between 5:00 a.m. and 8:30 a.m.
5). The #1 place women are abducted/attacked is grocery store parking lots. #2: office parking lots/garages. #3: public restrooms.
6). A rapists are looking to grab a woman and quickly move her to another location where they don't have to worry about getting caught.
7). Only 2% of rapists said they carried weapons, because rape carries a 3-5 year sentence but rape with a weapon is 15-20 years.
8). If you put up any kind of a fight at all, they get discouraged because it only takes a minute or two for them to realize that going after you isn't worth it because it will be time-consuming.
9). Rapists said they would not pick on women who have umbrellas, or other similar objects that can be used from a distance, in their hands. Keys are not a deterrent because you have to get really close to the attacker to use them as a weapon. So, the idea is to convince these guys you're not worth it.
10). If someone is following behind you on a street, in a garage, or with you in an elevator or stairwell, look them in the face and ask them a question, like what time is it, or make general small talk: Now you've seen their face and could identify them in a line-up; you lose appeal as a target. 11). If someone is coming toward you, hold out your hands in front of you and yell STOP or STAY BACK! Most of the rapists said they'd leave a woman alone if she yelled or showed that she would not be afraid to fight back, since they are looking for an EASY target.
12). If you carry pepper spray yell I HAVE PEPPER SPRAY and holding it out will be a deterrent.
13). If someone grabs you, you can't beat them with strength but you can by outsmarting them. If you are grabbed around the waist from behind, pinch the attacker either under the arm (between the elbow and armpit) OR in the e upper inner thigh VERY VERY HARD. One woman used the underarm pinch on a guy who was trying to date rape her broke through the skin and tore out muscle strands - the guy needed stitches. Try pinching yourself in those places as hard as you can stand it - it hurts.
14). After the initial hit, always GO for the GROIN. You might think that you'll anger the guy and make him want to hurt you more, but the thing these rapists said are that they want a woman who will not caus e a lot of trouble. Start causing trouble and he's out of there.
15). When the guy puts his hands up to you, grab his first two fingers and bend them back as far as possible with as much pressure pushing down on them as possible.
16). Of course the things we always hear still apply. Always be aware of your surroundings, take someone with you if you can and if you see any odd behavior, don't dismiss it, go with your instincts!!! You may feel a little silly at the time, but you'd feel much worse if the guy really was trouble.
17. Tip from Tae Kwon Do: The elbow is the strongest point on your body. If you are close enough to use it, do!
18. If a robber asks for your wallet and/or purse, DO NOT HAND IT TO HIM. Toss it away from you....chances are that he is more interested in your wallet and/or purse than you, and he will go for the wallet /purse. RUN LIKE MAD IN THE OTHER DIRECTION!
19. If you are ever thrown into the trunk of a car, kick out the back tail lights and stick your arm out the hole and start waving like crazy. The driver won't see you, but everybody else will. This has saved lives.
20. Women have a tendency to get into their cars after shopping, eating, working, etc., and just sit (doing their checkbook, or making a list, etc.) DON'T DO THIS! The predator will be watching you, and this is the perfect opportunity for him to get in on the passenger side, put a gun to your head, and tell you where to go. AS SOON AS YOU GET INTO YOUR CAR, LOCK THE DOORS AND LEAVE.a. If someone is in the car with a gun to your head DO NOT DRIVE OFF, repeat: DO NOT DRIVE OFF! Instead gun the engine and speed into anything, wrecking the car. Your Air Bag will save you. If the person is in the back seat they will get the worst of it. As soon as the car crashes bail out and run. It is better than having them find your body in a remote location.
21. A few notes about getting into your car in a parking lot or parking garage:A.) Be aware: look around you, look into your car, on the floor, and in the back seat.B.) If you are parked next to a big van, enter your car from the passenger door. Most serial killers attack their victims by pulling them into their vans while the women are attempting to get into their cars.C.) Look at the car parked near your vehicle. If a male is sitting alone in the seat nearest your car, you may want to walk back into the mall, or work, and get a guard/policeman to walk you back out.IT IS ALWAYS BETTER TO BE paranoid than dead.
22. ALWAYS take the elevator instead of the stairs. (Stairwells are horrible places to be alone and the perfect crime spot, especially true at NIGHT!
23. If the predator has a gun and you are not under his control, ALWAYS RUN! The predator will only hit a running target 4 in 100 times. And even then, it most likely WILL NOT be a vital organ. RUN in a zigzag pattern!
24. Women are always trying to be sympathetic: STOP! It may get you raped or killed. Ted Bundy, the serial killer, ALWAYS played on the sympathies of unsuspecting women. He walked with a cane, or a limp, and asked 'for help' into his vehicle or with his vehicle, which is when he abducted his next victim.
25. A woman heard a crying baby on her porch and called the police because it was late and she thought it was weird. The police told her "DO NOT open the door."The lady said it sounded like the baby had crawled near a window, and she was worried it would crawl to the street and get run over. The policeman said, DO NOT open the door. A serial killer has a baby's cry recorded and uses it to coax women out of their homes. Several calls by women saying they hear baby's cries outside their doors were reported.The Crying Baby killer was also mentioned on America's Most Wanted.
If you can add something constructive to this, please feel free.
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