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Why You Should Team Up and Make Friends: Your Professional Responsibilities When Accepting a Personal Injury Case
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Why You Should Team Up and Make Friends: Your Professional Responsibilities When Accepting a Personal Injury Case

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A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.

A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.

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  • Rule 26(d)(4) precludes a party from using an “undisclosed witness, document or material at any hearing or trial.” Accordingly, failure to abide by the disclosure requirements of Rule 26.2 may dramatically impair your ability to prove your case.
  • Including the name, address, approximate dates of treatment, and a general description of the reason for the treatment.
  • Including the amounts, payor's name and address, and the duration of the benefits.
  • Including the employer’s name and address and plaintiff’s job description, wage, and benefits.
  • Rule 26(b)(5) protects attorney work product, such as material developed by consulting experts retained to the merits of a case before filing.
  • The rule of professional practice regarding competence indicates that the proficiency of a general practitioner is typically sufficient for an attorney to competently handle a potential matter, but also notes that expertise in a particular field may also be required in some circumstances. For the attorney considering representation in a personal injury matter this nuance is important. Certainly not all cases are created equal. Some personal injury matters might simply require the careful application of tort law principles familiar to most general practitioners. However, personal injury matters dealing with medical malpractice, mass torts, or complex regulatory regimes, e.g., transportation and trucking, will often demand a higher level of expertise. An attorney without the requisite skill to competentlypursue such a matter should carefully consider accepting such a case given the requirement of Rule 1.1.
  • See R. Prof. Conduct 1.1, Competence cmt. 1 (2005)
  • A lawyer’s requirement to represent his or her client with “diligence” touches upon all aspects of representation. See, e.g., Camco Const., Inc. v. Utah Baseball Academy, Inc., 2010 UT 63, ¶ 21, 243 P.3d 1269 (2010) (finding an attorney’s failure to exercise reasonable diligence in identifying key legal case law and theories early in the matter precluded the same from receiving the sought relief).Brown v. Glover, 2000 UT 89, ¶ 30, 16 P.3d 540 (2000) (finding that an attorney’s professional responsibility to act with reasonable diligence and promptness imbues a responsibility on an attorney to “use the available discovery procedures to diligently represent her client.”) (citing Rule 1.3). Indeed, failure by an attorney to exercise diligence in representing his or her client can lead to sanctions and suspension of one’s license. See Utah State Bar v. Jardine, 2012 UT 67, ¶¶ 78, 83, 289 P.3d 516 (2012).
  • Willingness to see the matter through to trial is an inherent obligation assumed by an attorney representing any client. Accordingly, acceptance of a personal injury matter with an eye toward quick settlement is a violation of the spirit of the ethicalrules, if not their letter.
  • Presupposing the settlement of a case is a mistake. Moreover, assuming that one can later obtain the necessary expertise to represent his or her client competently and diligently is an equally dangerous proposition. Utah Rule of Civil Procedure 26.2 affords the practitioner very little time to understand and evaluate legal concepts otherwise unfamiliar or new, yet critical to the issues implicated by the underlying matter. In the end, the attorney considering representation in a personal injury matter must be self-aware. Does the attorney have the time, knowledge, resources, and expertise to pursue the matter to trial? If not, an alternate approach is required.
  • Regarding a reasonable fee, look at Rule 1.5(a)(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (a)(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (a)(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (a)(3) the fee customarily charged in the locality for similar legal services; (a)(4) the amount involved and the results obtained; (a)(5) the time limitations imposed by the client or by the circumstances; (a)(6) the nature and length of the professional relationship with the client; (a)(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (a)(8) whether the fee is fixed or contingent.
  • In other words, each lawyer is responsible and liable for the other lawyer’s actions in the matter, including ethical violations by either attorney.

Transcript

  • 1. WHY YOU SHOULD TEAM UP AND MAKE FRIENDS: YOUR PROFESSIONAL RESPONSIBILITIES WHEN ACCEPTING A PERSONAL INJURY CASE Mike Young and Rich Mrazik November 7, 2013 parsonsbehle.com
  • 2. 2 Utah‟s new(ish) Rule 26.2 provides a helpful vehicle for discussing our ethical duties. – Duty of competence – Duty of diligence – Permissible fee splitting arrangements Overview
  • 3. 3  Applies to “all actions seeking damages arising out of personal physical injuries or physical sickness”  Requires Plaintiff‟s Rule 26(a) initial disclosures to include a multitude of information regarding the plaintiff‟s medical and employment history  Required information must be served within 14 days after filing of the first answer to the complaint Utah R. Civ. P. 26.2 November 7, 2013
  • 4. 4 – A list of all health care providers who have treated or examined the plaintiff for the injury at issue; – A list of all other health care providers who treated or examined the plaintiff for any reason in the 5 years before the event giving rise to the claim; Utah R. Civ. P. 26.2 (cont.) November 7, 2013
  • 5. 5 – Plaintiff‟s SSN or Medicare health insurance claim number, full name, and date of birth; – A description of all disability or income- replacement benefits received if loss of wages or loss of earning capacity is claimed; Utah R. Civ. P. 26.2 (cont.) November 7, 2013
  • 6. 6 – A list of plaintiff‟s employers for the 5 years preceding the event giving rise to the claim if loss of wages or loss of earning capacity is claimed; – Copies of all bills, statements, or receipts for medical care, prescriptions, or other out-of- pocket expenses incurred as a result of the injury at issue. Utah R. Civ. P. 26.2 (cont.) November 7, 2013
  • 7. 7 – Copies of all investigative reports prepared by any public official or agency and in the possession of plaintiff or counsel that describe the event giving rise to the claim. – Except as protected by Rule 26(b)(5), copies of all written or recorded statements of individuals, in the possession of plaintiff or counsel, regarding the event giving rise to the claim or the nature or extent of the injury. Utah R. Civ. P. 26.2 (cont.) November 7, 2013
  • 8. 8 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. Duty of Competence
  • 9. 9 In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include:  the relative complexity of the matter;  the lawyer's training and experience;  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. Duty of Competence (cont.)
  • 10. 10 Rule 1.3. Diligence.  A lawyer shall act with reasonable diligence and promptness in representing a client.  A lawyer‟s work load must be controlled so that each matter can be handled competently. Duty of Diligence
  • 11. 11 The proposition of filing a complaint with the hopes of entering a quick settlement poses ethical risks.  “A lawyer should carry through to conclusion all matters undertaken for a client.” – R. Prof. Conduct 1.3, cmt. 4.  “A lawyer should not accept representation in a matter unless it can be performed competently, promptly, . . . and to completion.” – R. Prof. Conduct 1.16, cmt. 1. Beware the idea of a “quick settlement”
  • 12. 12  Expecting a “quick settlement” is a mistake.  Assuming you can develop the necessary expertise to represent your client competently and diligently “later” is also dangerous.  But personal injury cases offer interesting and rewarding work, so . . .  Make friends. So where does this leave us?
  • 13. 13  “Referral or forwarding fees, which by their nature involve an economic benefit for little or no actual services performed beyond the referral, are not permitted in Utah.” – Kate A. Toomey, Practice Pointers: Fee Splitting and Referral Fees Under the Rules of Professional Conduct, 12-Sep. Utah B.J. 17, *17 (1999) (citing Phillips v. Joyce, 523 N.E.2d 933, 939 n.5 (Ill. App. Ct. 1988) (emphasis added).  So, what is allowed? –Look to Rule 1.5 Permissible Fee Splitting Arrangements
  • 14. 14 “A division of a fee between lawyers who are not in the same firm may be made only if:  (e)(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;  (e)(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and  (e)(3) the total fee is reasonable. Permissible Fee Splitting Arrangements: Rule 1.5(e)
  • 15. 15 “… the division is in proportion to the services performed by each lawyer …”  Precludes an attorney from collecting fees for merely referring a matter to another attorney  Requires actual participation in the matter by the referring attorney Permissible Fee Splitting Arrangements: proportionality prong
  • 16. 16 “… each lawyer assumes joint responsibility for the representation …”  “The lawyer receiving a referral fee under a joint- responsibility arrangement cannot simply „hand off‟ the client to the receiving lawyer.” – Ethics Advisory Opinion Committee (EAOC) 121, May a Lawyer Pay Another Lawyer a Fee for Referring a Case? (Dec. 16, 1994)  Requires each lawyer to assume “responsibility for the representation as a whole.” – R. Prof. Conduct 1.5(e), cmt. 7. Permissible Fee Splitting Arrangements: joint responsibility prong
  • 17. 17  Mike Young – myoung@parsonsbehle.com – 801.536.6963  Rich Mrazik – rmrazik@parsonsbehle.com – 801.536.6931 THANK YOU