It’s About Time
Christian A. Stiegemeyer | Director of Risk Management
Christina Lewis Abate | Risk Manager
THE QUIZ
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 Land
You 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 Sociable
After 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 None
You 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 Me
You 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 Media
During 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 Question
As part of your investigation into a represented adverse party [AP], you view their LinkedIn 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 Service
In 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 ANSWERS
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
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:
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
2. This Land is Your Land
You 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
2. This Land is Your Land
You 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:
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_&slret
urn=20130014130702
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
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:
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 48.3(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
4. I was Just Trying to be Sociable
After 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
4. I was Just Trying to be Sociable
After 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:
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 None
You 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 None
You 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
6. It Never Occurred to Me
You 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
6. It Never Occurred to Me
You 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:
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
8. Again with the Social Media
During 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
8. Again with the Social Media
During 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:
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 Media
During 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
8. Again with the Social Media
During 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 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
8. Again with the Social Media
During 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 B. Was a permissible “use” under Rule 1.9(c)(1) because the memo
was “generally known.”
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
8. Again with the Social Media
During 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 B. Was a permissible “use” under Rule 1.9(c)(1) because the memo
was “generally known.”
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
8. Again with the Social Media
During 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 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
9. Last Social Media Question
As part of your investigation into a represented adverse party [AP], you view their LinkedIn 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
9. Last Social Media Question
As part of your investigation into a represented adverse party [AP], you view their LinkedIn 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:
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
10. Dating Service
In 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
10. Dating Service
In 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 – 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%.
It’s About Time
Christian A. Stiegemeyer | Director of Risk Management
Christina Lewis Abate | Risk Manager
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
What Does it Mean to be Timely?
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.
What Does it Mean to be Timely?
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.
What Does it Mean to be Timely?
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.
What Does it Mean to be Timely?
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 [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.
What Does it Mean to be Timely?
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 [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.
What Does it Mean to be Timely?
Rule 226
Kansas 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
What Does it Mean to be Timely?
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 Intake
Process should ensure
Submission and/or signed Engagement Letter/Fee Agreement
Calculation of SoL – Attach presumed statute to intake form
Confirmation of Calendaring – First critical date affirmed
Calendaring
Process should ensure
Ownership of delegated tasks
Empowerment to calendar deadlines
“No Exception” policy
Documentation
Process should ensure
Implementation of the BIG 3
Regular and timely client communication
Applying Timeliness
In 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.’
Applying Timeliness
In re Alberg, 294 P.3d 1192 (Kan. 2013)
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.”
Applying Timeliness
In re Alberg, 294 P.3d 1192 (Kan. 2013)
2011 Motion to Determine Attorney-Client AgreementKJ 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.
Applying Timeliness
In re Alberg, 294 P.3d 1192 (Kan. 2013)
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 Timeliness
Parallel 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.
Applying Timeliness
Parallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13
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.
Applying Timeliness
Parallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13
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 factspecific 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.
Applying Timeliness
Parallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13
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.
Applying Timeliness
Parallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13
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
Applying Timeliness
Parallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13
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.”
Closing Letters – Use them, every time, in all representations,
ESPECIALLY in those you consider “on-going.”
“This concludes our representation of you.”
Applying Timeliness
Parallel Iron LLC v. Adobe Systems Inc., D. Del., No. 12-874-RGA, 3/4/13
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.”
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
Christian A. Stiegemeyer | Director of Risk Management
Christina Lewis Abate | Risk Manager
Thank you!