Monday, March 10, 2008

RULE 1.3 DILIGENCE; RULE 1.4 COMMUNICATION; AND RULE 1.5 FEES

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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
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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
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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.

2 comments:

Anonymous said...

I understand that you want to have readers of the blog to respond with legal cites but it may be a greater service to allow people a place to discuss their feelings. I wish the discussions here could be more gentle to Wes but perhaps there isn't a place for all the bile except here.
If you don't want the comments to be negative toward Wes, you could restrict the comments or close off the comments.
I come here to read how Wes is doing. No place else has the news from his friends.

The Sur-Realist said...

Dear Anonymous,
Actually, I like for people to have a place to discuss their feelings. And I certaintly don't expect them all to share my feelings. However, some of the people say things equivalent to "where there's smoke, there's fire." That type of illogic and lack of reasoning is just plain stupid. Those who have a legitimate gripe can freely express it. Only one person who believed he had a legitimate injury/tort described it in detail instead of making vague comments about how evil Wes is. My point is this: be specific or shut up! Anybody can yammer on and on like a parrot. If you have something of substance to say, share it with us.

Anyway, I talked to Wes Saturday and he is sounding much stronger. He enjoys the articles we send from the Legal Schnauzer and Scott Horton and any other mail that comes his way. For a man with a very active and brilliant mind, jail can be a boring place. They have 4 tvs and a transsexual that they watch. Well, I don't know for sure that they actually watch the transsexual, but it must be odd to see a pseudo-woman in the middle of a man's prison camp. He said the food isn't anything to write home about, but he IS on a cardio diet which is NEVER anything to write home about. Wes is in good spirits -- decent spirits, considering all the circumstances. I understand that the transcript for his appeal has been completed. And there is a possibility that the Fifth Circuit Court of Appeals MIGHT entertain oral arguments for this case. (I imagine the transcript is about 10 million pages or more, and who wants to read all of that?) So, by the Grace of God, the appeal might be heard in about six months, or so. He is disappointed that it won't be sooner, but there are Special Circumstances that I'm saving as a surprise if it comes to pass that make the wait worthwhile.
If you are truly a friend of Wes, and you sound like a really caring person, why don't you correspond with Wes yourself?