It’s About Time Christian A. Stiegemeyer | Director of Risk Management Christina Lewis Abate | Risk Manager

It’s About Time

Christian A. Stiegemeyer | Director of Risk Management

Christina Lewis Abate | Risk Manager

THE QUIZ

1. But I have a Written Contract?You accept a contested probate case on a contingent fee basis. Your fee agreement states that if the client discharges the firm prior to the completion of the matter or decides not to pursue the matter, the client will immediately pay the accrued hourly rate incurred during the representation to that point. The conversion clause:

A. Is enforceable as a matter of contract law.

B. Is enforceable so long as the hourly rate fee is reasonable.

C. Is enforceable in quantum meruit.

D. Unenforceable.

THE QUIZ

2. This Land is Your LandYou represent a real estate developer. Over the course of several years you draft documents for successive entities of which the developer and investors are partners. The investors never sign an engagement letter or pay you a fee. After the development goes bankrupt and the investors lose $20 million, they sue for malpractice. On the question of whether you had an A/C relationship with the investors, the jury at your malpractice trial should:

A. Find an ACR because you did not have the investors sign a non-engagement letter.

B. Find there was no ACR because the investors never paid you a fee.

C. Find there was no ACR because it is not reasonable for the investors to believe you represented both them and the developer.

D. Find there was no ACR because the investors did not sign an engagement letter or fee contract.

THE QUIZ

3. Practice, practice, practice?You have learned that Adverse Counsel keeps clients’ notarized signatures on file and subsequently attaches them to discovery documents or documents to be filed in court. It is disputed whether the signer actually reviews the documents prior to the notarized signature being attached. Regarding this practice, you:

A. Don’t care what he does with his clients.

B. Have a duty to file a report with the DAO after counseling and obtaining your client’s consent.

C. Think it is a nifty time-saving idea and look into incorporating it into your practice.

D. Do not have a duty to file a report with the DAO.

THE QUIZ

4. I was Just Trying to be SociableAfter prevailing at trial, you are so excited you send out the following Facebook post, “Another million dollar verdict! We got the lying scum!! Who wants to be next?” This goes to relatives, friends, colleagues, acquaintances, some clients, and other people you’ve talked to about possibly representing in similar actions against this adverse party. The post:

A. Violates KRPC 7.1(b).

B. Violates KRPC. 7.3(a).

C. Violates KRPCs 7.1(b) and 7.3(a)

D. Is permissible because your Facebook site is strictly personal and not linked to any legal sites.

THE QUIZ

5. Bar NoneYou are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should find you:

A. Met the standard because of the unsettled nature of the law.

B. Met the standard because bringing the shooter into the action exposed your client to a malicious prosecution claim.

C. Met the standard because bringing the shooter into the action exposed your client to an abuse of process claim.

D. Failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue.

THE QUIZ

6. It Never Occurred to MeYou draft a PoA for Client which includes this language: “The holder of this Power of Attorney shall also file an annual account by January 31st of each year and deliver it to [YOUR NAME HERE],attorney, or any attorney licensed in this state, designated by me or by the holder of this Power-of-Attorney for safe-keeping.” The holder does not file the annual account but does steal $800,000 of Client’s money. Client sues you for malpractice. The above language should be held to:

A. Create a duty in you to follow-up and encourage the holder to comply with the scheme.

B. Create no duty beyond exercising appropriate care in drafting the PoA.

C. Create the duty to be a guardian of Client’s financial well-being.

D. Create a duty of being a general overseer of the PoA’s holder’s conduct.

THE QUIZ

7. I thought I updated that?After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court should:

A. Affirm the district court on the grounds that you did not timely receive notice.

B. Find the district court did not abuse its discretion because all factors of Rule 4(a)(6) were in fact met.

C. Affirm the district court because the law favors judgment on the merits.

D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.”

THE QUIZ

8. Again with the Social MediaDuring a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo was:

A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee.

B. A permissible “use” under Rule 1.9(c)(1) because the memo was “generally known.”

C. Permissible under Rule 1.6(b)(3) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”

D. Impermissible.

THE QUIZ

9. Last Social Media QuestionAs part of your investigation into a represented adverse party [AP], you view their Linked-In page to see what is there. The page has no password protection. The AP has enabled a feature of the system that allows them to “see” who has come onto their page. Because you are a Linked-In user also, you are aware of this feature. Looking at the Linked-in page:

A. Is an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

B. May be an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

C. Is ethical per Rule 4.2 because the page was not password protected.

D. Ethical pursuant to KRPC 3.2 Expediting Litigation.

THE QUIZ

10. Dating ServiceIn the ten year period 2002-2011, the most frequently reported “Error or Omission” malpractice event at The Bar Plan was:

A. Fail to File Documents with no Deadline.

B. Failure to Calendar Properly.

C. Failure to React to Calendar.

D. Fail to Ascertain a Deadline Correctly.

THE QUIZ

THE QUIZ ANSWERS


A. Is enforceable as a matter of contract law.

B. Is enforceable so long as the hourly rate fee is reasonable.

C. Is enforceable in quantum meruit.

D. Unenforceable.

THE QUIZ


ANSWER: Unenforceable.

See, Guy Bennett Rubin PA v. Guettler, Fla. Dist. Ct. App. 4th Dist., No. 4D09-5055, 10/5/11.

“A termination-of-services clause in a contingency-fee agreement, which provides for the client to pay the discharged law firm for all services rendered up through the date of termination at the prevailing hourly rate for firm members, if the client abandons or dismisses the claim, violates rule 4-1.5 on its face.”

Such clauses are unenforceable as a matter of public policy…because they have the effect of intimidating the client into not exercising the right to discharge counsel or drop the case.

THE QUIZ


A. Find an ACR because you did not have the investors sign a non-engagement letter.

B. Find there was no ACR because the investors never paid you a fee.

C. Find there was no ACR because it is not reasonable for the investors to believe you represented both them and the developer.

D. Find there was no ACR because the investors did not sign an engagement letter or fee contract.

THE QUIZ


ANSWER: A. Find an ACR because you did not have the investors sign a non-engagement letter.

Holland & Knight failed to convince a Los Angeles jury last month that it didn't represent the plaintiffs…in their real estate deals with [an] Atlanta developer and returned a verdict against the law firm for $34.5 million.

http://www.dailyreportonline.com/PubArticleDRO.jsp?id=1202555431438&Holland_amp_Knights_lesson_Get_a_disclaimer_&slreturn=20130014130702

THE QUIZ


A. Don’t care what he does with his clients.

B. Have a duty to file a report with the DAO after counseling and obtaining your client’s consent.

C. Think it is a nifty time-saving idea and look into incorporating it into your practice.

D. Do not have a duty to file a report with the DAO.

THE QUIZ


ANSWER: B. Have a duty to file a report with the DAO after counseling and obtaining your client’s consent.

Informal Opinion: 970029

QUESTION: Attorney is involved in a case in which opposing counsel has admitted to keeping notarized signatures of clients on file and subsequently attaching them to discovery documents or documents to be filed in court. The facts are disputed whether the signer actually reviewed the documents by fax or mail prior to the notarized signature being attached. Has opposing counsel violated the rules?

ANSWER: Advisory opinions are not issued on the conduct of an attorney other than the one requesting the opinion. However, based on the information Attorney has provided, Attorney has a duty to report the information, including the name of the attorney, the case, etc., to the Office of Chief Disciplinary Counsel. The duty to report is found in Rule 4-8.3(a). Because Attorney has a duty under the Rules to provide this information, Attorney may submit it in the form of a "report" or a "complaint." If Attorney submits a complaint, Attorney will be considered the complainant in the same manner as anyone else who files a complaint. If Attorney submits a "report," Attorney will not be considered or identified as the complainant. Attorney also will not be notified of the disposition of the matter.

THE QUIZ

RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT

(a) A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.

COMMENT

[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where it would not substantially prejudice the client's interests.

[3] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.

RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT(c) This rule does not require disclosure of information otherwise protected by Rule 1.6.

RULE 1.0: TERMINOLOGY (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

THE QUIZ

What Must Be Reported

Rule 8.3(a) does not require lawyers to report every violation but does require reporting when the violation raises a substantial question about the subject lawyer's honesty, trustworthiness, or fitness as a lawyer.

The following conduct has, under certain discreet facts, been deemed as mandatorily reportable:

Lying or Stealing

Inaccurate Advertising

Conflict of Interest

Unreasonable Fee

Improper Settlement Offer

Violation of Confidentiality

Failure to Correct Defective Court Order

Unauthorized Practice

THE QUIZ


A. Violates KRPC 7.1(b).

B. Violates KRPC. 7.3(a).

C. Violates KRPCs 7.1(b) and 7.3(a)

D. Is permissible because your Facebook site is strictly personal and not linked to any legal sites.

THE QUIZ


ANSWER: C. Violates KRPC 7.1(b) and 7.3(a)

KRPC 7.1(b) – A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law;.

Comment - [1] The prohibition in paragraph (b) of statements that may create "unjustified expectations" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award …

KRPC 7.3(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:(1) is a lawyer; or(2) has a family, closer personal, or prior professional relationship with the lawyer.

THE QUIZ

5. Bar NoneYou are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should find you:

A. Met the standard because of the unsettled nature of the law.

B. Met the standard because bringing the shooter into the action exposed your client to a malicious prosecution claim.

C. Met the standard because bringing the shooter into the action exposed your client to an abuse of process claim.

D. Failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue.

THE QUIZ

5. Bar NoneYou are defending a bar in a dram-shop action in which an over-served drunk customer shot and killed another patron. Because the law is unsettled on the question of whether you can make the shooter a party to the suit for allocation of fault, you decide not to include him. The jury finds the bar not liable for the shooter’s actions, but the judge directs a verdict against the bar for $950,000. The bar sues you for malpractice, claiming the shooter should have been included. At your malpractice trial on the issue of the standard of care the jury should:

Answer: D. Find you failed to meet the standard because the prudent course of action would be to add the shooter as a defendant for fault allocation and preserve the issue.

Attorneys are not immunized from malpractice liability simply because their purported mistakes involved “unsettled” legal questions and the existence of unsettled law does not excuse an attorney from fulfilling a duty of care. “Where the law is unsettled there is at least a viable claim that the standard of care requires the attorney to advise a client to follow the reasonably prudent course of action in light of the uncertainty.”

(L.D.G. Inc. v. Robinson, 290 P.3d 215 (Alaska 2012).

THE QUIZ


A. Create a duty in you to follow-up and encourage the holder to comply with the scheme.

B. Create no duty beyond exercising appropriate care in drafting the PoA.

C. Create the duty to be a guardian of Client’s financial well-being.

D. Create a duty of being a general overseer of the PoA’s holder’s conduct.

THE QUIZ


Answer: Create a duty in you to follow-up and encourage the holder to comply with the scheme.

“We conclude that, by incorporating the inventory and accounting scheme into the power of attorney, [attorney] expanded the scope of his representation of [Client] beyond the mere drafting of legal documents. By setting up the inventory and accounting scheme, [attorney] assumed a responsibility to attempt to make it work. Thus, [attorney] had a duty to follow up with [holder] regarding [the] obligation to complete an inventory and the annual accountings and encourage [holder] to comply with the scheme.”

Svaldi v. Holmes, --- N.E.2d ----, 2012 WL 6738345 Ohio App. 10 Dist.,2012.

THE QUIZ

7. I thought I updated that?After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court should:

A. Affirm the district court on the grounds that you did not timely receive notice.

B. Find the district court did not abuse its discretion because all factors of Rule 4(a)(6) were in fact met.

C. Affirm the district court because the law favors judgment on the merits.

D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.”

THE QUIZ

7. I thought I updated that?After changing firms, the notice of a federal district court’s decision is forwarded to your old email address. As a result, your notice of appeal is filed two weeks late. The district court, finding that all three factors necessary to reopen the time to appeal under Rule 4(a)(6) are present, grants additional time. In reviewing the decision the Circuit Court:

ANSWER: D. Reverse the district court because failure to receive the notice “was entirely and indefensibly [your] fault.”

Communication Network International Ltd. v. MCI WorldCom Communications Inc. (In re WorldCom Inc.), 2d Cir., No. 10-4588 (L), 1/24/13

“[L]itigants at all times have an ‘obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal.'”

“Rule 4(a)(6) was not designed to reward such negligence,” and that “in light of the systemic importance of the ‘sanctity of final judgments,’” reversal was required.

Rule 4(a)(6) permits reopening of the time to appeal so long as:“The court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment,”

“The motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier,” and

“The court finds that no party would be prejudiced.”

THE QUIZ


A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee.

B. A permissible “use” under Rule 1.9(c)(1) because the memo was “generally known.”

C. Permissible under Rule 1.6(b)(3) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”

D. Impermissible.

THE QUIZ


ANSWER: D. Impermissible.

Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent death or substantial bodily harm that is reasonably certain to occur; (2) to secure legal advice about the lawyer's compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or(4) to comply with other law or a court order.

See, e.g., In re Skinner, No. S13Y0105, 2013 BL 71428, 2013 ILRC 1509 (Ga. Mar. 18, 2013), Voluntary sanction of reprimand rejected where lawyer used confidential information to respond to “negative reviews” client posted about the lawyer on the internet.

THE QUIZ

8. Again with the Social MediaDuring a dissolution representation you Facebook “friended” a client. Several months after the resolution, you receive a Facebook notification that the client has posted on her page. You’re surprised to see it is a disgruntled rant with the client claiming you did little work and way overcharged her. Not taking that lying down, you post on her page a copy of a memo you filed seeking recovery of your fees from the Husband, which was denied. Posting the memo:

Answer A. Permissible because the client waived attorney-client privilege when she alleged you charged an unreasonable fee.

Irrelevant. The issue is whether the memo is Confidential Information, not whether it is a Privileged Communication.

KRPC 1.6 COMMENT [5] The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.

THE QUIZ


Answer B. Was a permissible “use” under Rule 1.9(c)(1) because the memo was “generally known.”

Using the memo in this fashion was a “reveal” under 1.9(c)(2), not a “use”, but even if it was a use, the memo was not “generally known”, only generally available. See e.g. In re Anonymous, 932 N.E.2d 671 (Ind. 2010) . [T]he Rules contain no exception allowing revelation …even if a diligent researcher could unearth it through public sources. We note that…1.9(c)(1) allows for use of information…if the information has become generally known. [T]there is no evidence that the information relating to…the divorce filing, was generally known.

THE QUIZ



RULE 1.9: DUTIES TO FORMER CLIENTS (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 become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

THE QUIZ



RULE 1.9: DUTIES TO FORMER CLIENTS

COMMENT [8] Rule 1.9 (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

THE QUIZ


Answer C. A Facebook page posting is not a “legal claim or disciplinary charge” alleging “complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client,…” KRPC 1.6 COMMENT [18].

See, e.g. New York County Ethics Op. 722 (1997), Exception applies only “where the accusation is rendered in such a manner that a person would reasonably conclude that the inquirer is subject to a charge or claim in an imminent (pending or threatened) proceeding”; Exception cannot be invoked by a “passing remark”.

THE QUIZ


A. Is an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

B. May be an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

C. Is ethical per Rule 4.2 because the page was not password protected.

D. Ethical pursuant to KRPC 3.2 Expediting Litigation.

THE QUIZ


ANSWER: A. Is an unethical communication under Rule 4.2 Communication with Person Represented by Counsel.

Under the above definitions [of “communication”], whether the communicator intends to “impart” a message or knowledge is seemingly irrelevant; the focus is on the effect on the receiver. It is the “transmission of,” “exchange of” or “process of bringing” information or ideas from one person to another that defines a communication. In the realm of social media, this focus on the transmission of information or knowledge is critical. A request or notification transmitted through a social media service may constitute a communication even if it is technically generated by the service rather than the attorney, is not accepted, is ignored, or consists of nothing more than an automated message of which the “sender” was unaware. In each case, at a minimum, the researcher imparted to the person being researched the knowledge that he or she is being investigated.

If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation of Rule 3.5.

New York State Formal Opinion 2012-2: JURY RESEARCH AND SOCIAL MEDIA

THE QUIZ


A. Fail to File Documents with no Deadline.

B. Failure to Calendar Properly.

C. Failure to React to Calendar.

D. Fail to Ascertain a Deadline Correctly.

THE QUIZ


A. Fail to File Documents with No Deadline – 4.9%.

B. Failure to Calendar Properly – 6.2%.

C. Failure to React to Calendar – 7.6%.

D. Fail to Ascertain a Deadline Correctly – 22.64%.

THE QUIZ

It’s About Time



What Does it Mean to be Timely?

Meeting Deadlines

Responding to Client Inquires

Moving the Client’s Matter Forward Expeditiously

Calendar Control

Engagement Letters/Fee Agreements

Concluding the Representation


1.3 Client-Lawyer Relationship: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

COMMENT [2] 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 substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.


1.3 Client-Lawyer Relationship: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

COMMENT [3] 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.


1.4 Client-Lawyer Relationship: 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 [1] 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.





COMMENT [2] Adequacy of communication depends in part on the kind of advice or assistance involved. …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.





COMMENT [4] 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 226Kansas Rules of Professional Conduct

1.5 Client-Lawyer Relationship: Fees

(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


Basis or Rate of Fee COMMENT [1] 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 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 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 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.

Tactics to Ensure Timeliness

Client IntakeProcess should ensure

Submission and/or signed Engagement Letter/Fee AgreementCalculation of SoL – Attach presumed statute to intake formConfirmation of Calendaring – First critical date affirmed

CalendaringProcess should ensure

Ownership of delegated tasksEmpowerment to calendar deadlines“No Exception” policy

DocumentationProcess should ensure

Implementation of the BIG 3

Regular and timely client communication

Applying TimelinessIn re Alberg, 294 P.3d 1192 (Kan. 2013)

2007 - Attorney files divorce petition

2009 (18 mos. Later) - Attorney sends client letter outlining fee arrangement

‘[K.J.], in light of my relationship with your family, we have continued on this case/quest for quite some time without formally rendering our longstanding oral agreement into writing as to my fees, costs and representation. In that regard we have agreed that you will be responsible for attorney's fees at the rate of $175.00 per hour or I will receive fees consisting of 1/3 of any and all proceeds of any kind or nature received or recovered from Respondent. As you know there are also “costs” involved for which you will be ultimately responsible. In regards to my attorney fees awarded me by the court you need to know that does not remove your ultimate responsibility for the fees which will remain as above without credit or offset of your responsibility hereunder. In the event no proceeds are collected you are still responsible for the hourly fees as a minimum.’


Post-divorce - KJ sent Attorney a letter on 11/13/09 indicating she understood the fee to be a 1/3 contingency.

Attorney responds on 11/16/09 – “‘Thank you for yours of November 13, 2009. Needless to say we disagree with your version of the events. In regards to the fee we were doing the divorce itself for an hourly fee. We also agreed that I would be entitled to 1/3 of any recovery we could make in collection of the award.”


2011 Motion to Determine Attorney-Client Agreement-

KJ testified:

She never received any regular billings or any billing statements;

She understood Attorney would take 1/3 of what she received in the divorce excluding child support and spousal maintenance and did not know a contingent fee arrangement in a divorce case was unlawful.

Attorney testified:

He did not have a written attorney-client fee contract;

KJ told him that she would give him 1/3 of what she got in the divorce;

He did not send regular billing statements to KJ but planned to charge hourly then credit the bill with collection proceeds;

He had a contingent fee agreement with KJ at the start of the representation for amounts that he collected after judgment was entered.


So, What to Do?

Recall Rule 1.5 Fees COMMENT [1]

“In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established.”

Bill Monthly

Whether you think you’ll ever be paid or not.

Procedures

Office Procedures must be established to make this happen

List client Intake processes

Create tracking processes

Delegate where necessary and confirm compliance

Applying TimelinessParallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13

Law Firm Russ August & Kabat (RAK) drafted opinion letters and analysis to Adobe in 2006, 2007, 2009 and 2011.

Five Months after delivering the 2011 analysis report, RAK brought suit on behalf of Parallel Iron against numerous defendants, including Adobe.

Adobe moved to disqualify RAK, alleging a CoI against a current client per Rule 1.7.


RAK argued that:

Each opinion letter and analysis was a discrete engagement

Each had an agreed-upon budget;

The attorney-client relationship with Adobe ended with the final conference call because RAK attorney asked if any additional work was needed or requested, and Adobe said no.

Adobe contended that it at all times expected that it would be able to continue relying on RAK as opinion counsel.


Court Held:

Where there is no express contract or formal retainer agreement, courts look at the contacts between the parties to determine whether it would have been reasonable for the client to believe that the attorney was still acting as its counsel.

A determination of whether an attorney-client relationship exists requires a client-centric focus and the reasonableness of the client's belief is a fact-specific inquiry that depends on the client's history with the law firm

The six-year history between Adobe and RAK made it reasonable for Adobe to believe that it would not be sued by RAK, at least without some prior notice that RAK would no longer be available to serve as its opinion counsel.

Fact that RAK had never refused work from Adobe strengthened the reasonableness of Adobe's belief that the attorney-client relationship was ongoing.


Court Held:

RAK could freely drop Adobe as a client but that it needed to clearly notify Adobe that the attorney-relationship was over before suing it.

RAK had the responsibility to ensure there were no questions regarding the status of its current client relationships.

When it became apparent that Adobe was a tenable target of Parallel Iron's suit, RAK should have been more alert to the delicateness of the situation and more proactive in eliminating any questions regarding the existence and extent of the Adobe relationship.


So, What to Do?Recall Rule 1.3 Client-Lawyer Relationship: Diligence

“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.”

Whose “Doubts”?

The Client’s


So, What to Do?

Recall Rule 1.3 Client-Lawyer Relationship: Diligence


Closing Letters – Use them, every time, in all representations, ESPECIALLY in those you consider “on-going.”

“This concludes our representation of you.”


So, What to Do?

Recall Rule 1.3 Client-Lawyer Relationship: Diligence


Procedures

Office Procedures must be established to make this happen

List client Closing processes

Create tracking processes

Delegate where necessary and confirm compliance

It’s About Time



Thank you!