ETHICAL ISSUES AND PRACTICAL SOLUTIONS fileETHICAL ISSUES AND PRACTICAL ... consultant E. Are the...
Transcript of ETHICAL ISSUES AND PRACTICAL SOLUTIONS fileETHICAL ISSUES AND PRACTICAL ... consultant E. Are the...
3/13/2017
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ETHICAL ISSUES
AND PRACTICAL
SOLUTIONS
Professor Roberta K Flowers
Sheila Moragas, Milling Benson Woodward L.L.P
Goals of the Sessions
Identify the unique ethical question an attorney faces in a special needs trust practice.
Explore the rules and standards that impact on these issues.
Interactive discussion of the practical solutions
Have Fun.
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What is your favorite musical
artist?
A. Eminem
B. Taylor Swift
C. Lady GAGA
D. Johnny Cash (when
he was alive that
is)
E. You call these
people artists?Em
inem
Tayl
or Sw
ift
Lady G
AGA
Johnny C
ash (w
hen he w
as ..
.
You call
these
peo
ple ar
tists
?
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Resources
ABA Model Rules of Professional Conduct
NAELA – Aspirational Standards for the Practice of Elder Law
www.naela.org/Applications/News-app/Files/112105final.pdf
ACTEC Commentaries on MRPC
www.actec.org/private/freeform/page.asp?PageID=489
The Questions Are Simple --
The Answers are Complicated
Who is the client?
Is there a conflict of interest in my involvement?
Who can I take to?
Can I play more than one role?
Even if I can ethically can do it, should I do it?
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Video-
Can I do it?
Attorney’s drafted the trust.
Bank/Trustee
See where the problem is
When the attorney drafted
the trust who was the client?
A. PI lawyer
B. The beneficiary
C. The trustee
D. No one the attorney was just acting as a consultant
E. Are the questions going to get easier
PI law
yer
The
benefic
iary
The
trust
ee
No one th
e atto
rney
was
ju..
Are th
e quest
ions g
oing t
o ...
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Who is the Client?
Retained by the litigation attorney
Retained by the trustee
Retained by the parents of the beneficiary
Retained by the beneficiary
Retained by the guardian
Retained as part of estate planning
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The importance of
Identifying your client
Malpractice
Confidentiality/Client/Attorney Privilege
Communications
Conflicts of Interest
Duty of Loyalty
Restrictions when dealing with non-clients
How do we identify the
client?
Model Rules/Preamble
Principles of substantive law external to these Rules
determine whether a client-lawyer relationship exists.
Most of the duties attach only after the client has
requested the lawyer to render legal services and the
lawyer has agreed to do so.
Confidentiality under Rule 1.6, that attach when the
lawyer agrees to consider whether a client-lawyer
relationship shall be established.
Whether a client-lawyer relationship exists for any specific
purpose can depend on the circumstances and may be a
question of fact.
NAELA Aspirational Standards
Understands and identifies whose
interest are being addressed
Clarifies who the attorney owes a
duty to
Clarifies steps that can be taken
Arranges for a private, direct and
personal communication with the
client
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How do we identify the
client?
Who called for the appointment?
Who came to the meeting?
Who is paying the bill?
Whose interests are being protected?
Who is signing the documents?
Can you accept a referral
fee?
A. Yes, it happens all
the time
B. No, it is unethical
C. Depends
Yes, i
t hap
pens a
ll the ti
me
No, it i
s uneth
ical
Depends
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Referral Fee
Model Rule 7.2
A lawyer shall not give anything of value
to a person for recommending the
lawyer's services except that a lawyer
may:
Pay Advertising costs
Pay Qualified Lawyer service
Buy a practice
Engage in a Referral agreement
.
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Fee Splitting
Model Rule 1.5 (e) A division of a fee between lawyers who
are not in the same firm may be made only if:
(1) the division is in proportion to the services
performed by each lawyer or each lawyer assumes joint
responsibility for the representation;
(2) the client agrees to the arrangement, including the
share each lawyer will receive, and the agreement is
confirmed in writing; and
(3) the total fee is reasonable
Is the “sweet” referral
agreement with the PI lawyer
ethical?
A. Yes, if there is a written agreement
B. Yes, if the clients know about the agreement
C. No, because it is exclusive
D. No, because referral agreements are per se unethical
Yes, i
f there
is a
writ
ten a
...
Yes, i
f the cl
ients
know
abo..
No, beca
use it
is e
xclu
sive
No, beca
use re
ferr
al a
gre...
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Model Rule 7.1
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
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Can the Attorney represent
the Trustee?
A. Yes
B. No
C. MAYBE
Yes No
MAYBE
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IS There a Conflict of
Interest?
1.7 Concurrent Client Conflicts
1.8 Attorney Personal Conflicts
1.9 Former Client Conflicts
1.18 Protection for the Prospective Client
How To Look at Conflicts
Comment 2 to Rule 1.7
Clearly identify the client or clients and the nature of
the relationship;
Determine whether a conflict of interest exists;
Decide whether the representation may be undertaken
despite the existence of a conflict=whether the conflict
is consentable; and
Consult with the clients affected under paragraph (a)
and obtain their informed consent, confirmed in
writing.
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Is there a Conflict
Rule 1.7
Directly Adverse
Materially Limiting
Rule 1.9
Materially Adverse
Same or Substantially the Same
Rule 1.18
Materially Adverse
Disqualifying Information
Is it Consentable
Reasonable attorney believe provide competent and
effective representation
Not against the law
Not in the same litigation representing both sides
Obtaining Consent
Informed Consent
Alternatives
Risks
Advantages
Confirmed in Writing
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Video-
Everyone is yelling at me
Attorney drafted the trust/identified client as the
beneficiary of the trust?
Who should the attorney talk to?
Who is the client?
A. Roger, the injured
beneficiary
B. Roger’s brother
C. Both
D. Neither, disbarred
attorneys cannot
have clients.
Roger,
the in
jure
d benef
iciar
y
Roger’s
bro
ther
Both
Neith
er, d
isbar
red a
ttorn
ey...
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The Accidental Client
Perspective of the client
Reasonable person would believe that an
attorney/client relationship has been formed
Who does the attorney think is the client
Who does the client think is the client
Who does the brother think is the client
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Can the Attorney talk to the
trustee
A. Yes, as he would be implied authorized to talk to the trustee.
B. No, it would be a breach of confidentiality.
C. Yes, if the client said it was okay.
D. No, it might confuse the trustee as to who the attorney represents.
Yes, a
s he
would
be im
plied...
No, it w
ould b
e a b
reach
of..
.
Yes, i
f the cl
ient s
aid it
was
...
No, it m
ight c
onfuse
the tr
...
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Rule 1.6
(a) A lawyer shall not reveal
information relating to the
representation of a client unless the
client gives informed consent, the
disclosure is impliedly authorized in
order to carry out the representation
or the disclosure is permitted by
paragraph (b).
Can the Attorney redraft the
trust and name himself as the
trustee
A. Yes, that is what the client wants
B. Yes, if he satisfies the requirements of entering into business with a client under Rule 1.8(a)
C. No, attorneys should not act as trustees
D. No, attorneys cannot draft the document that makes them a trustee
E. No, there is a conflict of interest
Yes, t
hat is
what t
he clie
nt...
Yes, i
f he sa
tisfie
s the
req...
No, atto
rney
s should
not a
c...
No, atto
rney
s can
not dra
ft t..
No, ther
e is a
confli
ct o
f int..
.
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Ethical Issues
Competence
Conflict
Independent Judgment
Complying with rules about
entering into a business
transaction with a client
Rule 1.8(a)
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
Can I? Should I?
Do I have time?
Do I have desire?
Do I like the client?
Do I trust the client?
“Some Things Just Ain’t Right”