| LEO Num | Topics | Summary | Date |
1893
|
| (Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" —because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad litem's appointment or judicial approval of an infant settlement — and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |
505
|
| (The only "nonrefundable" fees are the "quite rare" retainers (often called "true retainers") —which can be analogized to option contracts. Those: (1) require a lawyer to be available to provide services for a defined period (which will be separately billed at the time), and (2) must be taken into income immediately.<br>Otherwise, what many lawyers call "retainers" involve "lawyer tak[ing] possession — but not ownership of funds to secure payment for the services the lawyer will render to the client in the future.' Those can include a "flat fee" or "fixed fee" — which must remain in trust until the lawyer performs the agreed-upon work (this sometimes involves "dividing the representation into segments"). Under the ABA Model Rules, those types of fees "cannot be nonrefundable." Lawyers should use the term "advance" rather than "retainer" in these common circumstances — and "[e]xplain that the sum deposited will be applied to the balance owed for work on the matter, and how and when this will happen" -- such as monthly invoices, "dividing the representation into reasonable segments and providing for withdrawal of a reasonable portion of the deposited fee as the representation progresses, and the fee becomes partially earned." All but a handful of states require such unearned advance fees to be placed in trust — a few states provide for such "nonrefundable" or "earned on receipt" fees (mentioning Washington, Oregon, Arizona, Florida and New York). Under ABA Model Rule 1.16(d), lawyers must refund any unearned fees when a representation ends (the calculation of which sometimes involves a court's apportionment).<br> | 5/5/2023 |
ABA-502
|
| “Prose lawyers represent themselves as ‘a client,’ [and thus must comply with Rule 4.2’s ex parte communication limitations] and direct pro se lawyer-to represented person communication in such circumstances can result in a substantial risk of overreaching, disruption of the represented person’s client-lawyer relationship, and acquisition of uncounselled disclosures.” A dissent suggests revising Rule 4.2, noting that state courts in Connecticut and Kansas, and a Texas LEO took the opposite position. | 9/28/2022 |
1899
|
| Clients and their lawyers can agree on a reasonable “conversion clause” indicating how the lawyer will be compensated if the client terminates a fixed fee agreement without cause (rather than relying just on a quantum meruit process that requires a terminated lawyer’s legal action against the former client). Unlike the scenario with “conversion clauses” in contingent fee arrangements, the fixed fee setting has no expected recovery, and a “conversion clause” cannot result in the lawyer receiving more than the fixed fee itself. As long as the arrangement is reasonable and fully explained to the client, such a “conversion clause” might use “benchmarks” based on the “amount of work” done at certain stages of a fixed fee representation. | 1/6/2023 |
ABA-503
|
| Given the “inclusive nature and norms of...group electronic communications,” a lawyer may ethically use the “Reply All” option upon receiving an email from a represented party’s lawyer who copies her client- because “the sending lawyer is essentially inviting a reply all response.” The sending lawyer should have the burden of avoiding such responses by not copying her client on the email. However, “reply all” responses must cover “only the specific topics in the initial email,” and not include any “unrelated topics.” The sending lawyer can avoid this implied consent presumption by an explicit oral or written communication. The presumption does not apply to a “traditional letter printed on paper and mailed,” because in that situation “a different set of norms currently exists.” | 11/2/2022 |
ABA-506
|
| Lawyers may rely on non-lawyer "employees, agents, contractors, and vendors" to assist in "client intake tasks" under certain limited conditions -- as long as the pertinent jurisdiction does not consider their actions to be the unauthorized practice of law. Non-lawyers often engage in such intake tasks for nonprofit legal services organizations, for-profit law firms offering "limited scope online legal services," and for law firms handling "mass tort and class action representations." Although on its face ABA Model Rule 1.4(b) focuses on explaining the scope of a representation, bars also apply those duties to lawyers who communicate with prospective clients. Lawyers may "develop policies, train, and supervise" nonlawyers who engage in such actions as: obtaining "initial information about the matter"; "performing an initial conflict check"; determining if the would-be client seeks assistance "in an area of law germane to the lawyer's practice"; "answering general questions about fee agreement or process of representation"; and "obtaining the prospective client's signature on the fee agreement." But such prospective clients must be offered the opportunity to discuss fees and other pertinent issues with a lawyer, who does not relinquish her ABA Model Rule duties. Jurisdictions' unauthorized practice of law rules determine whether such non-lawyers may answer prospective clients' "specific questions." Non-lawyers may convey to a lawyer any questions that "would require the application of law to facts." Similarly, non-lawyers may provide "general information" about fees, but may not: provide advice about "what legal services the client should obtain"; negotiate fees or expenses; or offer "an interpretation of the rights and responsibilities set forth in the engagement agreement." Lawyers are ultimately responsible for making sure that their non-lawyer colleagues do not cross the line into the pertinent jurisdiction's impermissible unauthorized practice of law. | 6/7/2023 |
1893
|
| Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" - because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad !item's appointment or judicial approval of an infant settlement - and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |