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

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.

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