Uploaded on

 

  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads

Views

Total Views
1,256
On Slideshare
0
From Embeds
0
Number of Embeds
0

Actions

Shares
Downloads
11
Comments
0
Likes
0

Embeds 0

No embeds

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide

Transcript

  • 1. ABA Model Rules Key Concepts and Overview For Legal Managers Beverly Michaelis Practice Management Advisor Professional Liability Fund
  • 2. ABA Model Rules – Topics 1. Conflicts of Interest/Ethical Walls 2. IOLTA (IOTA) 3. Rules Relating to the Attorney-Client Relationship, Fees, Communication, and more 4. Advertising and Solicitation 5. Current Trends 6. Sample Test Questions Key Concepts for Legal Managers
  • 3. ABA Model Rules & Legal Managers Conflict of Interest Systems • Conflict systems are used to determine if potential new clients have conflicts with existing clients • Written waivers are required if a conflict exists • People & organizations representing a potential conflict are entered in the system • Ethical or “Chinese” Walls may be necessary
  • 4. ABA Model Rules & Legal Managers How Conflicts Arise Other lawyers in the firm: 1. Have represented opposing parties 2. Possess inside knowledge Disqualified lawyers should be screened
  • 5. ABA Model Rules & Legal Managers The Firm Rule • If one member of the firm has a conflict, all members have a conflict • Conflicts leave with the departing lawyer • Incoming lawyers should be screened for potential conflicts
  • 6. ABA Model Rules & Legal Managers Ethical Walls 1. Obtain consent 2. Issue notice to all employees 3. Place memorandum in file 4. Visibly mark file 5. Move file away from lawyers/staff 6. Respect the wall at all times 7. Issue periodic reminders
  • 7. ABA Model Rules & Legal Managers Why are Walls Erected?  Protect client confidences  Avoid limiting a legal professional’s job mobility Some states are more restrictive – know your state’s rules!
  • 8. ABA Model Rules & Legal Managers Assessing Conflicts 1. The firm’s risk avoidance attorney will determine if a conflict exists. 2. Not all conflicts require ethical walls 3. The risk avoidance attorney will: – Define the conflict – Obtain client consent – Neutralize the conflict
  • 9. ABA Model Rules & Legal Managers Group and Organization Representation Groups: • Lawyer should explain advantages and risks • All clients must stay fully informed Organization: • Duty is to organization
  • 10. ABA Model Rules & Legal Managers Avoid the Following 1. Gifts from clients 2. Book or TV deals (until case concluded) 3. Loans to clients 4. Third party payment with strings attached 5. Aggregate settlements 6. Business transactions with clients
  • 11. ABA Model Rules & Legal Managers Avoid the Following 7. Sexual relations with clients 8. Proprietary interest in case 9. Agreement in advance to limit liability without independent legal advice 10. Settling a claim with an unrepresented or former client without independent legal advice
  • 12. ABA Model Rules & Legal Managers Procedures for Legal Managers → Know how to set up a database → Have familiarity with software → Know how to do a conflict search → Know how to supervise staff
  • 13. ABA Model Rules & Legal Managers IOLTA (or IOTA) – What is It? • Mandated by state authorities • Requires interest-bearing accounts for client deposits that are: – Nominal in amount or – Not long in duration • Interest is pooled and administered by state bar
  • 14. ABA Model Rules & Legal Managers IOLTA (or IOTA) – What is It? Funds being held for a client must be placed in: 1. An account paying interest to the client or 2. An IOLTA account
  • 15. ABA Model Rules & Legal Managers IOLTA (or IOTA) – How to Do It • Instruct bank to open a NOW or other interest- bearing checking account • Account is opened in state where lawyer’s office is situated • Lawyers are responsible for minimum balance & fee requirements
  • 16. ABA Model Rules & Legal Managers IOLTA (or IOTA) – How to Do It • Many banks waive fees • Maximum amount in IOLTA depends on rules in each jurisdiction • Bank responsible for paying interest & sending statements to IOLTA committee and lawyer
  • 17. ABA Model Rules & Legal Managers IOLTA (or IOTA) – Dealing with Client Funds 1. Client funds must be segregated. 2. If client can net interest – set up separate account unless client directs otherwise
  • 18. ABA Model Rules & Legal Managers IOLTA (or IOTA) – Avoiding Trouble • Know your jurisdiction’s rules • Notify client promptly o when money is added or o when money is taken out • Keep unearned fees or unearned costs in trust
  • 19. ABA Model Rules & Legal Managers IOLTA (or IOTA) – Avoiding Trouble • Promptly deliver funds when entitled • Promptly render full accounting upon request • Keep disputed funds separate • Keep complete records (usually 5 years)
  • 20. ABA Model Rules & Legal Managers IOLTA (or IOTA) – Notes for Legal Managers 1. Rule 1.15 on Safekeeping provides the ethical guidelines for establishing & maintaining accounts 2. All lawyers must establish IOLTA accounts, EXCEPT: • Lawyers who do not hold client funds • Lawyers who make loan transactions through lending banks
  • 21. ABA Model Rules & Legal Managers IOLTA (or IOTA) – Notes for Legal Managers 3. No lawyer, law firm, or client pays taxes on IOLTA interest per IRS ruling 4. Contact IOLTA Committee immediately if you receive a 1099 on an IOLTA account 5. Banks file informational reports with IRS re interest paid to IOLTA Committees 6. IOLTA Committees are non-profit (pay no tax)
  • 22. ABA Model Rules & Legal Managers IOLTA (or IOTA) – Notes for Legal Managers • You may, but are not required, to notify clients of your participation in IOLTA • Clients have no say re use of IOLTA funds • Remember that funds must go into an interest- bearing account benefiting the client if the client can “net” interest
  • 23. ABA Model Rules & Legal Managers Rule 1.0 Attorney-Client Relationship A fiduciary relationship commanding  Respect  Competence  Diligence  Independent professional judgment  Preservation of confidences
  • 24. ABA Model Rules & Legal Managers Rule 1.0 Attorney-Client (Fiduciary) Relationship  Fair play  Honesty  Responsiveness  Reasonable fees Much the same is expected of the client in return
  • 25. ABA Model Rules & Legal Managers Rule 1.3 – Diligence DOs: 1. Zealously represent 2. Complete entire task 3. Timely manage workload DON’TS 1. Cause client anxiety Legal Managers should 2. Lose client’s trust calendar deadlines to ensure due diligence
  • 26. ABA Model Rules & Legal Managers Rule 1.4 – Communication • Keep the client informed • Consult with the client • How will client’s objectives be met? • What is acceptable/ethical
  • 27. ABA Model Rules & Legal Managers Rule 1.5 – Fees 1. Use written agreements 2. No contingent fees in domestic or criminal cases 3. Fee splits must be proportionate or client must consent
  • 28. ABA Model Rules & Legal Managers Rule 1.6 – Exceptions to Confidentiality 1. To carry out representation 2. Prevent reasonably certain death, harm, crime, or fraud 3. Defensively (complaint, claim, other)
  • 29. ABA Model Rules & Legal Managers Rule 1.16 – Withdrawal is Mandatory When  Representation would violate rules  Lawyer is impaired (mentally or physically)  Lawyer is discharged
  • 30. ABA Model Rules & Legal Managers Rule 1.16 – Voluntary Withdrawal 1. Accomplished without material adverse effect 2. Client persists with fraud/crime or uses lawyer 3. Fundamental disagreement 4. Client’s action is repugnant 5. Client fails to pay 6. Other good cause
  • 31. ABA Model Rules & Legal Managers Rule 1.16 – Voluntary Withdrawal Withdrawal always requires: • Notice • Permission of tribunal • Protection of client’s interests  Refund fees  Surrender papers and property (unless retention is otherwise permitted)
  • 32. ABA Model Rules & Legal Managers Rule 1.17 – Sale of Law Practice 1. Lawyers may sell all or part of a practice or goodwill 2. Requires written notice to clients 3. 90 days must pass 4. Fees cannot be increased
  • 33. ABA Model Rules & Legal Managers Rule 5.3 – Non lawyers • Must conform to rules of conduct • Make reasonable efforts to supervise • Lawyers responsible if: o Conduct ordered or ratified o Lawyer is partner/manager fails to avoid, mitigate, remediate
  • 34. ABA Model Rules & Legal Managers Rule 5.7 – Rules of Conduct Apply to Other Professions  If services not distinct from legal work  Client not informed there is no attorney-client relationship (reasonable efforts standard) Lawyers must always comply with the rules of the other profession
  • 35. ABA Model Rules & Legal Managers Rule 6.1 – Pro Bono 1. Every lawyer has a duty to provide pro bono services 2. Aspirational goal is financial contribution and 50 hours per year
  • 36. ABA Model Rules & Legal Managers Rule 6.3 – Legal Services Membership Lawyers can serve as directors, officers or members of legal organizations even if persons served by the organization are adverse to the lawyer’s firm Key Concept for Legal Managers: This is not a conflict of interest
  • 37. ABA Model Rules & Legal Managers Rule 7.6 – Political Contributions Lawyers cannot accept judicial appointments or government jobs in exchange for making or soliciting political contributions
  • 38. ABA Model Rules & Legal Managers Advertising and Solicitation Lawyers cannot pay others for channeling professional work to the lawyer  Prepaid legal services OK  Non-profit referral organizations OK  Attorney referral organizations OK Legal Managers must be able to evaluate these types of intermediary organizations
  • 39. ABA Model Rules & Legal Managers Direct Solicitation Prohibited 1. There is no relationship with soliciting lawyer 2. When client rejects contact 3. Solicitation involves duress or harassment
  • 40. Other Material in this Section Current Trends Review material for current trends 1. Fee alternatives (flat/fixed fees, task-based billing, bonus system) 2. Technological changes (billing, legal research, software, e-mail, Web sites, extranets, intranets, printing to PDF, and video conferencing) Technology can save clients money and keep them better informed
  • 41. Sample Test Questions Sharing Space & Common Expenses • Sally Smith and Reba Rodman share office space • Can they advertise as Smith & Rodman? No! They must first establish a firm.
  • 42. Sample Test Questions Web Sites, Extranets, and Intranets 1.Web sites are public and used for advertising 2.Extranets are secure, private sites accessible only to clients or co-counsel. They are NOT used for: • E-mailing clients • Listing staff and lawyers • Providing documents to the public 3. Intranets are for internal use only by law firm personnel
  • 43. Sample Test Questions Trust Accounts The following are FALSE: • Attorneys need not notify clients every time a deposit is made or funds withdrawn • IOLTA interest is taxable to the attorney • IOLTA interest is taxable to the client The following is TRUE: • Attorneys need not notify clients that their funds will be enrolled in IOLTA
  • 44. Sample Test Questions Conflicts If a conflict is noted during a conflict search, an attorney shall: 1. File a claim against the perpetrator 2. Work with another attorney to minimize the conflict 3. Alert the client and erect an ethical wall 4. Submit the case to a hearing of peers
  • 45. Sample Test Questions Advertising May criminal attorney Susie advertise on her Web site that she has successfully defended 90% of her cases? • Yes – if it’s true and accurate • Yes – if she lists her name, address, and phone • No – even if the % was true, it violates the rules • No – we don’t know what “successfully defended” means
  • 46. Sample Test Questions Advertising May criminal attorney Susie advertise she is a certified criminal law specialist? • Yes – if she has been certified by an organization approved in her state or accredited by the ABA • Yes – if the name of the certifying organization is clearly identified • No – lawyers cannot communicate specialties
  • 47. Sample Test Questions Letterhead & Advertising The following are permitted: • Trade names (Bayside Immigration Clinic) • Deceased founder • Multi-state listings if jurisdictions designated What is not permitted: • Listing a current state Congressman in public office who is not active with the firm
  • 48. Sample Test Questions Unauthorized Practice of Law Joe Justice, criminal lawyer, is in Florida. His office is one hour from Georgia. His former paralegal, Inez, who has a law degree, now has an Immigration Clinic in Georgia. She fills out forms for immigrants. Inez wants Joe to review the forms before they are filed. May Joe assist Inez?
  • 49. Sample Test Questions Unauthorized Practice of Law 1. Yes, as her former boss, if he is aware of her work product and can assist with quality control and legal advice. 2. Yes, if he is licensed in Georgia and Inez is licensed to practice law. 3. No, if he is not licensed in Georgia. 4. No, if he is assisting Inez in UPL.