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The Rules of Professional Conduct and You

The attorney-client relationship is defined and regulated by the state’s rules of professional responsibility. These rules are unique to each state, but generally follow the American Bar Association Model Rules. Understanding these rules can help you get the most out of your attorney.

A lawyer shall provide competent representation to a client.[1]

This goes without saying.

A lawyer shall act with reasonable diligence and promptness in representing a client.[2]

A lawyer has a duty to handle your matter diligently and promptly. Every attorney has to deal with emergencies, but being busy is not an acceptable excuse for failing to be prompt or diligent. The rules instruct that if an attorney is too busy, they should not take the case.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.[3]

Attorneys do more than learn and apply the law. They help solve problems. This is true whether the attorney is helping you enforce your rights, resolve litigation, limit risk, or get a deal done.

A lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are pursued.[4]

The client sets the goal of the representation. The attorney will offer advice on the reasonableness or practicality of a goal. For example, your attorney can recommend that you accept or reject a settlement, but the decision to settle is the client’s. Tactical decisions, such as which witnesses to call at trial, are ultimately the attorney’s—but they should not be made without consulting the client. If you do not understand or agree with an attorney’s methods, you should ask for an explanation.

With this in mind, when meeting with an attorney you should be prepared to talk about what you hope to accomplish, not just what you want the attorney to do. This is important for several reasons. First, there may be a better or more efficient way to accomplish your goal. A trust is often a good way to protect assets, but perhaps all you need is a simple transfer on death deed. Second, the attorney may have additional ideas—legal and practical based on their experience in similar matters—that will help you with your goal. The attorney can also identify unexpected obstacles before they arise.  Third, the attorney can help you set your expectations and make intelligent risk/reward decisions. Finally, discussing your goals with your attorney can help you clarify for yourself what you really want. In divorce cases, some clients start by focusing on “winning” the divorce, but come to realize that what they really want in the long term is to put it behind them and move on with their lives.

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.[5]

A common complaint is that attorneys are too expensive. It may surprise you to learn that many attorneys agree. However, an attorney may not cost as much as you think.

The expense many people associate with attorneys stems, in part, from the attorney’s broad duty to provide diligent and competent representation. By default, an attorney has an ethical obligation to consider all the issues raised by a client’s matter and investigate the facts and potential issues. This is known as a general representation. Historically, this is the foundation of the default attorney-client model.  In response to growing concerns about legal fees, we are seeing the growing use of an important tool that can be used to limit these expenses—a limited representation agreement. While not appropriate in all circumstances, and subject to strict rules beyond the scope of this article, this tool often allows you to work with your attorney to limit the scope of the representation to just the issues or matters you consider the highest priority or greatest risk, focusing on those services with the greatest return on investment where a few hundred dollars now are more likely to save you thousands later.

A lawyer shall:

  • Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required;
  • 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
  • Explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.[6]

You should never feel like you are in the dark when working with an attorney. All attorneys have a duty to keep you informed and respond to reasonable requests for information. Please be aware, however, that the attorney will be charging for their time if you want to call and talk about your case every day.

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.[7]

You should understand what you are being charged, and why. You have the right to ask an attorney to explain their fees both before and after they are incurred.

A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.[8]

This is why you should not hesitate to reach out and make that initial contact with an attorney. There is a lot to be gained by asking an attorney what they can do for you, and nothing to lose. The attorney may be able to help you identify solutions and risks you had not considered for minimal costs. If you do not like what they have to offer or the services they have been providing, you can end the representation.

Thomas Witt is an attorney with Fryberger, Buchanan, Smith & Frederick, P.A., practicing in the areas of Litigation, Family Law and Employment Law. This article is not intended to provide legal advice. You should always consult with an attorney about your specific circumstances.

 

 

 

 

[1] Rule 1.1, ABA Model Rules of Professional Conduct Rules of Professional Responsibility

[2] Rule 1.3

[3] Rule 2.1

[4] Rule 1.2.

[5] Rule 1.2(c)

[6] Rule 1.4

[7] Rule 1.5(b)

[8] Comment [4] to Rule 1.6