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INTRODUCTION
I assume it has been several months if not years since we have glanced through the rules
that guide our professional conduct as lawyers in the State of Oklahoma. First, the
guidelines, as written, are not exciting nor are they a captivating read that garners the same
enthusiasm as reading the most recent New York Times Best Selling book or watching
How to Get Away with Murder on Thursday evenings at 9:00 p.m. Second, we likely only
hurriedly scan the rules when we anticipate someone might have the audacity to question
our ethical behavior or, more importantly, we are in the midst of justifying our professional
conduct.
The Oklahoma Rules of Professional Conduct are located in Title 5 of the Oklahoma
Statutes. The rules are designed to assist us in our professional relationships with our
clients, other lawyer and the judiciary. I recall a law schoolprofessor at one point proclaim
that our ethics are guided, in part, by common sense and doing the right thing. It seems
somewhat interesting to look at the scope of the rules today and see a confirmation of this
theory. The scope of the rules state “The Rules of Professional Conduct are rules of
reason."1
Without drifting too far afield of the intended topic, it is also interesting to look at the
preamble to the rules and how it defines our role as lawyers.
A lawyer, as a member of the legal profession, 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 an evaluator, a lawyer acts by examining a client’s legal affairs and
reporting about them to the client or to others.2
1 5 O.S.A. Ch. 1, App. 3-A Scope
2 5 O.S.A. Ch. 1, App. 3-A Preamble
Within this backdrop, we will look at the Oklahoma Rules of Professional Conduct and its
guidelines for preventing conflicts of interest, establishing the fee between with the client
and maintaining client confidentiality.
A. Preventing Conflicts of Interest
The Oklahoma Rules of Professional Conduct address three separate areas where conflicts
potentially arise. Rule 1.7 discusses conflicts of interest with current clients by stating:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client
if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer’s
responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able
to provide competent and diligent representation to each
affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim
by one client against another client represented by the lawyer
in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in
writing.
Rule 1.7 defines conflict of interest and prohibits representing two clients whose interests
are materially adverse to one another. Even with the existence of a conflict as defined by
the rules, the conflict can, in certain situations be waived by the client if informed consent
is given and confirmed in writing.
Rule 1.8 of the Oklahoma Rules of Professional Conduct outline specific rules related to
conflictsof interest. A full copy of Rule 1.8 is attached as a reference should one encounter
a situation for the application of these guidelines. Generally, Rule 1.8 discusses those
instances where the lawyer is engaged in business transactions or acquires ownership,
possessory security or other financial interests adverse to a client.
Finally Rule 1.9 of the Oklahoma Rules of Professional Conduct identifies conflict of
interest with former clients. Rule 1.9 states:
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the interests
of the former client unless the former client gives informed consent,
confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer formerly
was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected
by Rules 1.6 and 1.9(c)that is material to the matter; unless the
former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules would
permit or require with respect to a client, or when the
information has been generally known; or
(2) reveal information relating to the representation except as
these Rules would permit or require with respect to a client.
Both Rule 1.7 and 1.9 mirror the exception to the conflict as long as it is disclosed and
consent is given in writing.
As you might expect, determining if you have a conflict is often the most difficult step.
Gathering sufficient facts is a key component in the process. All of us should utilize
conflict-checking systems appropriate with the size of our practice. For example, practice
management software can be utilized to check for conflicts, particularly in large firms.
Despite the mechanism chosen to address conflicts of interest, communication is the key
to addressing potential conflicts and preventing unnecessary problems. Even more
important is the implementation of a workable system for each of the lawyers to provide
input on new case evaluations.
B. Setting and Collecting Attorney Fees
Communication and establishing expectations is important in any successful relationship.
At the inception of the attorney-client relationship, communicating about the feeagreement
is essential. Early and meaningful discussions about the contingency fee foster a sense of
trust and establish expectations between the lawyer and client. A clear understanding of
the fee between the lawyer and client is also mandatory under our rules of professional
conduct. There are many ways to present the proposed fee agreement to prospective
clients; but there is only one way to formalize the fee agreement with your prospective
client.
One example involves simply discussing the concept of the contingency fee agreement
with the client early in the relationship. A general discussion with a potential client that
identifies the percentage of the attorney fee to the over-all judgment or verdict along with
the expectations ofexpenses can build a solidfoundation of trust. Soon thereafter, a written
fee agreement can be sent to the client via mail or email. The potential client can review
the proposed agreement in a surrounding comfortable to them without feeling pressured.
Rule 1.5 of the Oklahoma Rules of ProfessionalConduct describe the specificrequirements
for a fee agreement between a lawyer and their client:
(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:
(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) The scope of the representation and the basis or rate of the fee and
expenses for which the client will be responsible shall be communicated to
the client, preferably in writing, before or within a reasonable time after
commencing the representation, except when the lawyer will charge a
regularly represented client on the same basis or rate. Any changes in the
basis or rate of the fee or expenses shall also be communicated to the client.
(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
signed by the client and shall state the method by which the fee is to be
determined, including the percentage or percentages that shall accrue to the
lawyer inthe 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 feeis calculated. The agreement must
clearly notify the client of any expenses for which the client will be liable
whether or not the client is the prevailing party. 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 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 a 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 each lawyer assumes joint responsibility for the
representation;
(2) the client agrees to the arrangement and the agreement is
confirmed in writing; and
(3) the total fee is reasonable.
C. Maintaining Client Confidentiality
BEV
D.

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Auto Injury Litigation From Start to Finish (Ethics)

  • 1. INTRODUCTION I assume it has been several months if not years since we have glanced through the rules that guide our professional conduct as lawyers in the State of Oklahoma. First, the guidelines, as written, are not exciting nor are they a captivating read that garners the same enthusiasm as reading the most recent New York Times Best Selling book or watching How to Get Away with Murder on Thursday evenings at 9:00 p.m. Second, we likely only hurriedly scan the rules when we anticipate someone might have the audacity to question our ethical behavior or, more importantly, we are in the midst of justifying our professional conduct. The Oklahoma Rules of Professional Conduct are located in Title 5 of the Oklahoma Statutes. The rules are designed to assist us in our professional relationships with our clients, other lawyer and the judiciary. I recall a law schoolprofessor at one point proclaim that our ethics are guided, in part, by common sense and doing the right thing. It seems somewhat interesting to look at the scope of the rules today and see a confirmation of this theory. The scope of the rules state “The Rules of Professional Conduct are rules of reason."1 Without drifting too far afield of the intended topic, it is also interesting to look at the preamble to the rules and how it defines our role as lawyers. A lawyer, as a member of the legal profession, 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 an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.2 1 5 O.S.A. Ch. 1, App. 3-A Scope 2 5 O.S.A. Ch. 1, App. 3-A Preamble
  • 2. Within this backdrop, we will look at the Oklahoma Rules of Professional Conduct and its guidelines for preventing conflicts of interest, establishing the fee between with the client and maintaining client confidentiality. A. Preventing Conflicts of Interest The Oklahoma Rules of Professional Conduct address three separate areas where conflicts potentially arise. Rule 1.7 discusses conflicts of interest with current clients by stating: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
  • 3. Rule 1.7 defines conflict of interest and prohibits representing two clients whose interests are materially adverse to one another. Even with the existence of a conflict as defined by the rules, the conflict can, in certain situations be waived by the client if informed consent is given and confirmed in writing. Rule 1.8 of the Oklahoma Rules of Professional Conduct outline specific rules related to conflictsof interest. A full copy of Rule 1.8 is attached as a reference should one encounter a situation for the application of these guidelines. Generally, Rule 1.8 discusses those instances where the lawyer is engaged in business transactions or acquires ownership, possessory security or other financial interests adverse to a client. Finally Rule 1.9 of the Oklahoma Rules of Professional Conduct identifies conflict of interest with former clients. Rule 1.9 states: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c)that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has been generally known; or
  • 4. (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. Both Rule 1.7 and 1.9 mirror the exception to the conflict as long as it is disclosed and consent is given in writing. As you might expect, determining if you have a conflict is often the most difficult step. Gathering sufficient facts is a key component in the process. All of us should utilize conflict-checking systems appropriate with the size of our practice. For example, practice management software can be utilized to check for conflicts, particularly in large firms. Despite the mechanism chosen to address conflicts of interest, communication is the key to addressing potential conflicts and preventing unnecessary problems. Even more important is the implementation of a workable system for each of the lawyers to provide input on new case evaluations. B. Setting and Collecting Attorney Fees Communication and establishing expectations is important in any successful relationship. At the inception of the attorney-client relationship, communicating about the feeagreement is essential. Early and meaningful discussions about the contingency fee foster a sense of trust and establish expectations between the lawyer and client. A clear understanding of the fee between the lawyer and client is also mandatory under our rules of professional conduct. There are many ways to present the proposed fee agreement to prospective clients; but there is only one way to formalize the fee agreement with your prospective client. One example involves simply discussing the concept of the contingency fee agreement with the client early in the relationship. A general discussion with a potential client that identifies the percentage of the attorney fee to the over-all judgment or verdict along with the expectations ofexpenses can build a solidfoundation of trust. Soon thereafter, a written fee agreement can be sent to the client via mail or email. The potential client can review the proposed agreement in a surrounding comfortable to them without feeling pressured. Rule 1.5 of the Oklahoma Rules of ProfessionalConduct describe the specificrequirements
  • 5. for a fee agreement between a lawyer and their client: (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: (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) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (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 signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the
  • 6. lawyer inthe 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 feeis calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. 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 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 a 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 each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement and the agreement is confirmed in writing; and (3) the total fee is reasonable. C. Maintaining Client Confidentiality BEV D.