Professional Responsibility

Rule 8.4: A lawyer engages in misconduct, and is therefore subject to discipline, if the lawyer . . .

violates or attempts to violates the Rules, knowingly assists or induces another to do so, or does so through the acts of another.

Rule 1.1 : A lawyer shall provide

competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

What does competent representation require under Rule 1.1?

The legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

What are some relevant factors in determining competence? Cmt 1 to R. 1.1

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.

Does a lawyer need prior experience or specialized training to handle legal problems of a type with which the lawyer is unfamiliar? Cmt. 2 to R. 1.1.

No, a newly admitted lawyer possesses some important skills that are required in all legal problems, a lawyer can provide adequate representation in a wholly novel field through necessary study, and competent representation can also be provided through the association of a lawyer of established competence in the field in question.

Is there an emergency exception to the competence requirement? Cmt. 3 to R. 1.1.

Yes, a lawyer may provide assistance in an unfamiliar area during an emergency when referral, consultation, or association with another lawyer is impractical. However, assistance must be limited to what is reasonably necessary under the circumstances.

What does competence require in respect to relevant technology? Cmt. 8 to R. 1.1.

Lawyers should keep abreast of the benefits and risks associated with relevant technology.

Rule 5.1(a): Partners and lawyers with comparable managerial authority must make:

Reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers comply with the Rules.

Rule 5.1(b): A lawyer with direct supervisory authority over another lawyer must:

Make all reasonable efforts to ensure that lawyer complies with the Rules.

Rule 5.1 (c ): A lawyer is responsible for another lawyer’s violation if:

(1) The lawyer orders the conduct or, with knowledge, ratifies it; or

(2) The lawyer is a partner, manager, or supervisor and:

• Knows of the conduct while its consequences can still be avoided or mitigated; and

• Fails to take reasonable remedial action.

Rule 5.3(a): With respect to nonlawyers, a partner or manager shall make:

Reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

Rule 5.3(b): With respect to nonlawyers, a direct supervisor must make

Reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

Rule 5.3( c): A lawyer is responsible for conduct of a nonlawyer if the conduct would be a violation of the Rules if engaged in by a lawyer and if:

(1) The lawyer orders the conduct or, with knowledge, ratifies it; or

(2) The lawyer is a partner, manager, or supervisor and:

• Knows of the conduct while its consequences can still be avoided or mitigated; and

• Fails to take reasonable remedial action.

Rest. Sec. 48: A lawyer is civilly liable for professional negligence when:

(1) the lawyer owes the plaintiff a duty of care;

(2) the lawyer fails to exercise the required care; and

(3) that failure is a legal cause of injury.

Rule 1.6: 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 an exception.

Rule 1.6: What are the exceptions to client confidentiality?

To prevent reasonably certain death or substantial bodily harm,

To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services

To prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services,

To secure legal advice about the lawyer’s compliance with these Rules;

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

To comply with other law or a court order

To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

Rule 1.6 Attorney Client Privilege: A lawyer shall make reasonable efforts to prevent:

The inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Rest. 68: Except as otherwise provided, the attorney-client privilege may be invoked as provided in the section with respect to:

(1) A communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.

Rest. 72: A communication is made for the purpose of obtaining or providing legal assistance within the meaning of Section 68 if it is made to or to assist a person:

(1) Who is a lawyer or who the client or prospective client believes to be a lawyer, and

(2) Whom the client or prospective client consults for the purpose of obtaining legal assistance.

Rest. 69 A communication within the meaning of Section 68 is . . .

Any expression through which a privileged person undertakes to convey information to another privileged person and any document or other record revealing such an expression.

Rest. 70 Privileged persons within the meaning of Section 68 are . . .

The client (including a prospective client), the client’s lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.

Rest. 73 When a client is a corporation, unincorporated association, partnership, trust, estate, sole proprietorship, or other for-profit or not-for-profit organization, the attorney client privilege extends to a communication that:

(1) Otherwise qualifies as privileged,

(2) Is between an agent of the organization and a privileged person,

(3) Concerns a legal matter of interest to the organization, and

(4) Is disclosed only to: (a) privileged persons, and (b) other agents of the organization who reasonably need to know of the communication in order to act for the organization.

Rule 1.13(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain . . .

The identify of the client when the lawyer knows or reasonably knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.

Rule 5.5 “A lawyer shall not practice law in a jurisdiction . . .

In violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

Rule 5.5 Cmt. 2. “The definition of the practice of law is . . .

Established by law and varies from one jurisdiction to another.

What is the rationale for the prohibition on nonlawyer practice?

To protect the public against rendition of legal services by unqualified persons.

Why do most jurisdictions permit the publication of books that aid people in representing themselves?

Because these individuals are providing information about the law, not actually practicing law.

A relationship of client and lawyer arises when: Rest. 14

A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either:

(a) the lawyer manifests to the person consent to do so; or

(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.

Rule 1.13(a): A lawyer employed or retained by an organization represents . . .

The organization acting through its duly authorized constituents.

Rest. 4.2: A lawyer-client relation arises when a tribunal . . .

With power to do so appoints the lawyer to provide services.

Rule 6.2: A lawyer shall not seek to avoid appointment . . . to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Rule or other law,

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer,

( c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

Or (comment) a person cannot afford to retain counsel or whose cause is unpopular, or if the lawyer could not handle the matter competently.

Rule 1.16: A lawyer shall not represent a client, or if representing a client, a lawyer must withdraw from representation . . . if:

The representation will result in violation of the Rules or other law;

The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;

The lawyer is discharged; or

The client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.

1.16 cmt 2: A lawyer must undertake a range of factors to consider the level of risk that a client may be attempting to use the lawyer’s services in furtherance of a crime or fraud, including:

The identify of the client, such as whether the client is a natural person or an entity and, if an entity, the beneficial owners of that entity;

The lawyer’s experience and familiarity with the client;

The nature of the requested legal services;

The relevant jurisdictions involved in the representation; and

The identities of those depositing into or receiving funds from the lawyer’s client trust account, or any other accounts in which client funds are held.

Rule 1.2(d): A lawyer shall not counsel a client to engage, or assist a client, in conduct that

The lawyer knows is criminal or fraudulent.

Rule 1.2(b): A lawyer’s representation of a client, including representation by appointment, does not constitute . . .

An endorsement of the client’s political, economic, social, or moral views or activities.

Rule 1.16(b). A lawyer is permitted to withdraw from representation under the following circumstances:

Withdrawal can be accomplished without material adverse effect on the interests of the client;

The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

The client has used the lawyer’s services to perpetrate a crime or fraud;

The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

Other good cause for withdrawal exists.

Even where Rule 1.16(a) would require withdrawal or Rule 1.16(b) would permit withdrawal, Rule 1.16c provides that “a lawyer must comply . . .

with applicable law requiring notice to or permission of a tribunal when terminating a representation.”

Where a lawyer satisfies the conditions for terminating representation, Rule 1.16(d) requires that a lawyer shall take steps to the extent reasonably practicable to . . .

Protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.”

Rest. 52. What is the standard of care regarding malpractice liability?

The competence and diligence normally exercised by lawyers in similar circumstances.

In determining the relevant standard of care, courts look to . . .

The practices and standards . . . of lawyers undertaking similar matters in the relevant jurisdiction (typically a state). In some legal areas, there exists a national practice with national standards.

A lawyer may be held to a higher standard where a lawyer has a

Special skill or where a lawyer represents to a client that the lawyer has greater competence or will exercise greater diligence than that normally demonstrated by lawyers undertaking similar matters.

A rule or statute regulating the conduct of lawyers but not providing a damages remedy does not

Give rise to an implied cause of action for lack of care or fiduciary breach.

Rest. 51: Three limited circumstances under which lawyers have a duty of care to nonclients.

The lawyer or (with the lawyer’s acquiescence) the lawyer’s client invites the nonclient to rely on the lawyer’s opinion or provision of other legal services, and the nonclient so relies, and . . . the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled to protection;

The lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s service benefit the nonclient the nonclient, . . . such a duty would not significantly impair the lawyer’s performance of obligations to the client, and . . . the absence of such a duty would make enforcement of those obligations to the client unlikely;

The lawyer’s client is a trustee, guardian, executor, or fiduciary acting primarily to perform similar functions for the nonclient, . . . the lawyer knows that the appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a fiduciary duty owed by the client to the nonclient, where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach, the nonclient is not reasonably able to protect its rights, and . . . such a duty would not significantly impair the performance of the lawyer’s obligations to the client.

Rest. 58(I). A law firm is subject to civil liability . . .

For injury legally caused to a person by any wrongful act or omission of any principal or employee of the firm who was acting in the ordinary course of the firm’s business or with actual or apparent authority.

Rest 15. Regarding prospective clients, a lawyer must . . .

Use reasonable care to the extent the lawyer provides legal services to a prospective client.

What legal services might a lawyer provide to a prospective client?

The lawyer might comment on such matters as whether that person has a promising claim or defense,

Whether the lawyer is appropriate for the matter in question,

Whether conflicts of interest exist and if so how they might be dealt with,

The time within which action must be taken and,

If the representation does not proceed, what other lawyer might represent the prospective client.

The lawyer also must not harm a prospective client through unreasonable delay after indicating that the lawyer might undertake the representation.

Rule 1.8(h): regarding malpractice, a lawyer shall not:

Make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or

Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

In attempting to prospectively limit a lawyer’s liability to a client for malpractice, a client must be:

Independently represented in making the agreement.

In attempting to settle a claim or potential claim for malpractice with an unrepresented client or former client, the client must be:

Advised in writing of the desirability of seeking independent counsel and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

Rule 1.2c. A lawyer may limit the scope of the representation if:

The limitation is reasonable under the circumstances, and the client gives informed consent.

Ineffective assistance is:

Deficient performance by counsel resulting in prejudice, with performance being measured against an objective standard of reasonableness under prevailing professional norms.

Restatement 53(d): A convicted criminal defendant suing for malpractice must prove both that:

The lawyer failed to act properly and that,

but for that failure, the result would have been different.

Rule 1.2(a) governs allocation of decision-making authority between lawyer and client and provides that, subject to paragraphs c and d, a lawyer shall . . .

Abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

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.

Rest. 21 cmt. d .A lawyer is not required to carry out an instruction that the lawyer . . .

reasonably believes to be contrary to professional rules or other law or which the lawyer reasonably believes to be unethical or similarly objectionable.

Rest. 23 ct. c. Lawyers have inherent authority to act and decide for clients when the legal system

requires an immediate decision without time for consultation. Whether a decision falls in that category depends on the requirements of procedural systems and orders of tribunals, as well as on such circumstances as the availability of the client for immediate consultation and the effect of interruption for consultation on the orderly and effective presentation of the client’s matter.

Rule 1.2 cmt. 2.

Rule 1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows

Is criminal or fraudulent, but 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.

Rule 2.1. In representing a client, a lawyer shall exercise . . .

Independent professional judgment and render candid advice.

Rule 2.1. 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.

Rule 1.14(a). When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible,

Maintain a normal client-lawyer relationship with the client.

Rule 1.14(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take

Reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

Rule 1.14 cmt. 4. If a legal representative has already been appointed for the client, the lawyer should

ordinarily look to the representative for decisions on behalf of the client.

Rule 1.14c. When taking protective action pursuant to paragraph b, the lawyer may reveal

Information related to the representation to the extent the lawyer reasonably believes necessary to protect the client’s interests.

Rule 5.4(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

An agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons

A lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price.

A lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and

A lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter.

Rule 5.4(b) A lawyer shall not form a partnership with a nonlawyer if:

Any activities of the partnership consist of the practice of law.

Rule 5.4c: A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate

The lawyer’s professional judgment in rendering such legal services.

Rule 5.4(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration.

A nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation, or

A nonlawyer has the right to direct or control the professional judgment of a lawyer.

Rule 5.7(a) A lawyer shall be subject to the Rules with respect to the provision of law-related services if the law-related services are provided:

By the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to the client, or

In other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

Rule 5.7(b): The term “law-related services” denotes services that:

Might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

Rule 5.4(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

Except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

Hold out to the pubic or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

Rule 5.4c: A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

Are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter,

Are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized,

Are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission, or

Are not within paragraphs 2 or 3 and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

Rule 1.16c: A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall:

Continue representation notwithstanding good cause for terminating the representation.

Rule 5.6. A lawyer shall not participate in offering or making:

A partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement conferring benefits upon retirement; or

An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

Rule 7.1. A lawyer shall not make a . . .

False or misleading communication about the lawyer or the lawyer’s services.

Rule 7.1. A communication is false or misleading if:

It contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Rule 7.2. A lawyer may communicate information regarding the lawyer’s services through . . .

Any media

Rule 7.2(b): A lawyer shall not compensate, give, or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:

Pay the reasonable costs of advertisements or communications permitted,

Pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service,

Pay for a law practice in accordance with Rule 1.17,

Refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited that provides for the other person to refer clients or customers to the lawyer if the reciprocal referral agreement is not exclusive, and the client is informed of the existence and nature of the agreement, and

Give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

7.2c: A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

The lawyer has been certified as a specialist, and

The name of the certifying org. is clearly identified in the communication.

7.2(d) Any communication made under this Rule must include:

The name and contact information of at least one lawyer or law firm responsible for its content.

7.3(b): A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:

Lawyer,

Person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm, or

Person who routinely uses for business purposes the type of legal services offered by the lawyer.

7.3c: A lawyer shall not solicit professional employment even when not otherwise prohibited if:

The target of solicitation has made known to the lawyer a desire not to be solicited by the lawyer, or

The solicitation involves coercion, duress, or harassment.

Rule 7.1 cmt. 3: Even a truthful advertisement that leads a reasonable person to form an unjustified opinoin about the results that a lawyer can obtain may be

Misleading.

Pre-Amendment Rule 7.2: A lawyer may advertise services through written, recorded, or electronic communication, including public media, and any communication shall include:

The name and office of at least one lawyer or law firm responsible for its content.

Rule 7.5 (Pre-amendment): Prohibits firm names or letterheads that violate 7.1, but permits the use of a trade name in private practice so long as:

That name does not imply a connection with a government agency or a public or charitable legal services organization.

Pre-amendment rule 7.5c: A firm may not use the name of:

A lawyer holding public office during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

Pre-amendment Rule 7.5)b): Permits the use of the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate:

The limitations on those not licensed to practice in the jurisdiction where the office is located.

Pre-amendment Rule 7.5(d): Lawyers may state or imply that they practice in a partnership or other organization only when:

That is the fact.

Rule 1.5(a): A lawyer shall not make an agreement for, charge, or collect:

An unreasonable feed or an unreasonable amount for expenses.

1.5(a): The factors to be considered in determining the reasonableness of a fee include:

The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

The fee customarily charged in the locality for similar legal services;

The amount involved and the results obtained;

The time limitations imposed by the client or by the circumstances;

The nature and length of the professional relationship with the client;

The experience, reputation, and ability of the lawyer or lawyers performing the services; and

Whether the fee is fixed or contingent.

1.5(b): 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 expense shall also be communicated.

1.5c: A fee may be:

Contingent on the outcome of the matter for which the service is rendered except for exceptions in paragraph d.

1.5c cont’d: A contingent fee 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. d

1.5(d): A lawyer shall not enter into an arrangement for, charge, or collect:

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

A contingent fee for representing a defendant in a criminal case.

A division of a fee between lawyers who are not in the same firm may be made only if:

The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation,

The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing, and

The total fee is reasonable.

Rest. 38 cmt. f. Prevailing litigants in some types of litigation are entitled to recover . . .

Attorney fees from an opposing party.

Rule 1.15(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation . . .

Separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

Rule 1.15(b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose . . .

Paying bank service charges on that account, but only in an amount necessary for that purpose.

Rule 1.15c: A lawyer shall deposit into a client trust account . . .

Legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

Rule 1.15(d): Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall

Promptly notify the client or third person. Except as otherwise stated, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

Rule 1.15(e): When in the course of representation a lawyer is in possession of property in which two or more persons claim interests, the property shall be:

Kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute al portions of the property as to which the interests are not in dispute.