Introduction and Week 1-3:

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1. What are the sources of professional responsibility and ethics regulation for attorneys? What obligations are prescribed? What other kind of guideposts should a lawyer reflect upon, according to the Preamble to the MRPC?

2. What are the sources of professional responsibility and ethics regulation for judges? 

3. What are the two broad categories of duties that professional responsibility rules embody?

4. What is one area of professional responsibility with a high level of bar activity this year? 

5. What are some of the shared normative commitments held by members of the legal profession in the United States? 

6. What are the three roles that a lawyer fulfills according to the Preamble to the MRPC? 

7. What are the three personal qualities that every lawyer should evidence according to the Preamble? What other two core obligations does the Preamble list? 

8. As a public citizen, according to the Preamble, what are some of the goals that a lawyer's behavior should embody? 

9. How is the legal profession governed, according to the Preamble? 

10. According to the Preamble, when do most duties flowing from the MRPC attach? Are there exceptions? 

11. According to the Preamble, how should the the disciplinary process of an alleged violation of a Rule proceed? 

12. According to the Preamble, does a violation of a Rule give rise to a cause of action against an attorney?

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13. Is the MRPC a law? How does it connect with state level rules of professional responsibility? 

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14. What does it mean for a lawyer to be "competent"?  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.1.1

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15. What are the relevant factors in determining whether a lawyer employs the requisite knowledge and skill in a particular matter? Relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner.1.1

16. Is expertise in a particular field of law ever required? Expertise in a particular field of law may be required in some circumstances.1.1

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17. Does a law need to have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar? Not necessarily. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.1.1

18. If a lawyer is new to an area of law, what are the best courses of conduct? A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. 1.1 

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19. Are the rules different in emergency situations?  Yes. In an emergency, a lawyer may give advice or assistance even without the skill ordinarily required provided that referral, consultation or association with a more skilled lawyer would be impractical. However, assistance should be limited to that reasonably necessary in the circumstances.1.1

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20. What is the key question regarding competence that a lawyer should ask?  The questions is "Can the requisite level of competence can be achieved by reasonable preparation?"1.1

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21. What are some of the conduct elements that demonstrate competent handling of a particular matter? These include inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.1.1

22. What is the standard for determining adequate preparation? The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. 1.1

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23. What should a lawyer do before retaining or contracting with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client?  The lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. 1.1

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24. How is the reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm analyzed? It will depend upon the circumstances, including the education, experience and reputation of the non-firm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information. 1.1

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25. How should a shared representation proceed? When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules. 1.1

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26. What does it mean that a lawyer is obligated to maintain competence? To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. 1.1

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27. In an ongoing representation, who makes the ultimate decisions concerning the objectives of representation?  The client, but for limited exceptions. 1.2

28. In an ongoing representation, does the lawyer have an obligation to consult with the client as to the means by which the objectives are to be pursued? Yes. But, a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.1.2

29. Who decides whether to settle or plead in a case? A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. 1.2

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30. Can a lawyer may limit the scope of the representation? Yes, if the limitation is reasonable under the circumstances and the client gives informed consent. 1.2

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31. How does a lawyer limit scope? Scope is generally limited by agreement with the client in writing or by the terms under which the lawyer's services are made available to the client. 1.2

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32. Do lawyers and clients have substantial latitude to limit the representation? Yes, but the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 1.2

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33. Does a lawyer's representation of a client constitute an endorsement of the client's political, economic, social or moral views or activities? No.1.2

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34. Is a lawyer obligated to represent a client using means the lawyer finds repugnant or imprudent? No. The terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. 1.2

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35. Is a lawyer allowed to assist a client if the requested assistance is potentially criminal or fraudulent? No, A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.1.2

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36. How should a lawyer handle a situation where a client asks for assistance with potentially criminal or fraudulent conduct? A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.1.2

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37. How are disagreements between clients and lawyers about the means to accomplish objectives resolved? The MRPC does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. 1.2

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38. What happens if a client and a lawyer cannot agree on means? If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. Conversely, the client may resolve the disagreement by discharging the lawyer. 1.2

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39. Does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action? No. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 1.2

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40. How does a lawyer handle a crime in progress? The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter.  In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like.  1.2

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41. How should a lawyer communicate with a client who expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions? The lawyer must consult with the client regarding the limitations on the lawyer's conduct. 1.2

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42. What does it mean that a lawyer pursues a matter with diligence? It means that a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. 1.3

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43. Does a lawyer's "zeal" mean that a lawyer is bound to press for every advantage that might be realized for a client? No. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. It does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. 1.3

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44. What does the duty of diligence mean for a lawyer's  work load? A lawyer's work load must be controlled so that each matter can be handled competently. 1.3

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45. How does a lawyer know when a representation has ended? 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. 1.3

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46. What are some unique aspects of solo practice in connection with the duty of diligence? To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. 1.3

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47. What kinds of communications practices characterize are required under the MRPC?  A lawyer should promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required. A lawyer should reasonably consult with the client about the means by which the client's objectives are to be accomplished, keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information; and consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. 1.4

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48. What degree of detail in legal explanation is required under the MRPC? A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. A lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Adequacy of communication depends in part on the kind of advice or assistance that is involved.   A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. 1.4

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49. How does exigency of the circumstances impact the duty to communicate promptly? In some situations, the duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf.  However, the MRPC requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. 1.4

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50. How should a lawyer handle the discovery of a material error? A lawyer should promptly inform a current client upon discovery. 1.4

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51. How does a lawyer determine whether an error is material? An error is likely to be material if a disinterested lawyer would conclude that: the error will result in financial loss to the client, substantial delay in achieving the client’s objectives for the representation, or material disadvantage to the client’s legal position, or disclosure of the error is necessary for the client to make an informed decision about the representation (including whether to terminate the representation) or for the lawyer to advise the client of significant changes in strategy, timing, or direction of the representation. A lawyer’s effort to avoid embarrassment, discipline or financial liability for the lawyer’s material error in the course of a representation is not a sufficient basis for failing to communicate as required. 1.4

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52. Why is nondisclosure of a material error problematic under the MRPC? Depending on the facts, the lawyer’s material error may create a conflict of interest between the lawyer and the client requiring the lawyer’s withdrawal or the client’s informed consent, confirmed in writing. 1.4

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53. Is a lawyer required to inform a former client where the lawyer discovers only after the client-lawyer relationship has ended that the lawyer made a material error in the former client’s representation? No. 1.4

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54. What are the factors to be considered in determining the reasonableness of a fee? Lawyers charge fees that are reasonable under the circumstances. Factors 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. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer. 1.5

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55. When must fee arrangements be communicated? 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. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. 1.5

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56. Can fee arrangements be modified once a representation has begun? Yes, however certain conditions apply.  Modification of an existing fee agreement, whether written or not, is permissible, but any modification should be reasonable under the circumstances at the time of the modification as well as communicated to and accepted by the client. Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally reasonable if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation, absent an unanticipated change in circumstances, are less likely to be reasonable. 1.5

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57. Can lawyers represent clients on a contingency fee basis? Yes, 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 the MRPC or by law. Contingent fees, like any other fees, are subject to the reasonableness standard. A contingent fee agreement shall be in a 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 in the 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 fee is 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 its determination. 1.5

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58. What kinds of legal fees are prohibited? 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. However, the MRPC does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.1.5

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59. When can a fee be divided between lawyers who are not in the same firm? It 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, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. 1.5

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60. May a lawyer may require advance payment of a fee? Yes, but the lawyer is obliged to return any unearned portion.1.5

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61. May a lawyer may accept property in payment for services, such as an ownership interest in an enterprise? Yes, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation. Such fees often have the essential qualities of a business transaction with the client and additional clarifying disclosures may be required.1.5

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62. What is the test for a fee arrangement that runs afoul of the MRPC? An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.1.5

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63. Can a lawyer who has a conflict of interest that would preclude the representation receive a portion of the fee generated in the matter? No.  A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. 1.5

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64. Can fees be received by a lawyer in the future for work performed during a previous association with a law firm that ended? Yes. 1.5

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65. How should fee disputed between clients and lawyers be handled?  If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory. If it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.1.5

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