MPRE Units 9-12

JD Advising

Explain the Rule on Lawyer’s Safekeeping Property or Funda for Clients

When a client “prepays” a lawyer for services or otherwise gives the L property, L MUST keep it separate from its own and must not steal, borrow it or use it for the L’s personal advantage

L must hold property in connection with a representation separate from their own property BUT may deposit the amount necessary to pay bank service charges on a client trust account from their own funds

If its a large amount of Client funds what should the Lawyer do?

Put the funds into a separate interest bearing account and allow the client to retain the interest

If its a small amount of client funds, what should the lawyer do?

put it into a pooled client trust account

Where must a client trust account be held?

in a state where the lawyer practices or elsewhere with the consent of the client or 3rd person

What should the lawyer do if its not funds but other property?

Other property must be identified as such & safeguarded appropriately. Complete records of such account funds and other property shall be kept by the lawyer AND preserved for a period of 5 years after termination of the representation

Where should the Lawyer keep securities?

in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances

What is the general rule for Client Trust Fund Accounts

any money that a lawyer received BUT hasn’t earned, the L must immediately put it in a client trust fund account that is separate from the L’s own personal and business account

AND

L mustn’t put any personal or firm money into the CTA (unless it is sole purpose for paying bank fees but only the amount necessary for such fee)

When may a Lawyer withdraw funds from the CTA?

Only as fees are eanred or expenses incurred.

What happens if there is a disputed claim?

L must keep the disputed portion in the CTA until the dispute is resolved AND shall distribute all portions of the property as to which the interests are not in dispute

What must the lawyer do if upon received funds or other property in which a client or 3rd person has an interest?

Must promptly notify the client or 3rd person, promptly deliver what such C or 3P is entitled to receive and If the C/3P requests, render a full accounting regarding such property

What should the Lawyer do with 3rd Party funds not connected with a representation?

a lawyer may deposit such funds into the Lawyer’s business account, remember the commingle rules on apply to C’s funds or 3rd P’s funds that are in connection with a representation.

Lawyer’s may communicate about its services through any media: What is permitted?

1. 1. Information concerning a lawyer’s name or firm name, address, email address, website and phone number

2. 2. Kinds of services L will undertake

3. 3. L’s fees (including prices for specific services & payments/credit arrangements

4. 4. L’s foreign language ability

5. 5. Name of references and, with their consent, names of clients regularly represented & other information that might invite the attention of those seeking legal assistance

When a Lawyer may give something of value for Recommending the Lawyer’s services: Though a L may not generally pay another for recommending a L’s services, a L may:

1. 1. Pay the reasonable costs of adverts/communications permitted by the rule

2. 2. Pay the usual charges of a legal service pan or a not-for-profit or qualified legal referral service

3. 3. Pay for a law practice (following same reqs of R 1.17)

4. 4. Refer Clients pursuant to a Reciprocal Referral Agreement to a L or NonL

5. 5. Give nominal gifts as expressions of appreciation any communication made pursuant to this rule shall include the contact info of atleast 1 L or Law firm responsible for its content

A lawyer may compensate nonlawyers for generating client leads, as long as

the nonlawyers do not recommend the lawyer’s services (there is no referral) or improperly communicate with the potential clients

Reciprocal Referral agreements: A lawyer may refer clients to an L or NonL pursuant to an agreement if:

1. 1. The agreement is NOT Exclusive

2. 2. The client is informed of the agreement

3. 3. The agreement does not interfere with the L’s professional judgment

RRA’s should not be of indefinite duration AND should be reviewed periodically, Restaurant owners are not professionals so L subject to discipline if RRA set up with a nonprofessional. Professionals include: accountants, real estate agents, doctors

Explain Rule on Solicitation (direct contact with prospective clients)

Solicitation = communication initiated by or on behalf of L or LF that is directed to a specific person the L knows/should know needs legal services in a particular matter and offers to provide or reasonable can be understood as offering legal services for that matter

GR: L SHALL NOT solicit professional employments by live person to person contact when a significant motive for the L in doing so is (to make money) UNLESS the person contacted is

1. 1. a lawyer

2. 2. Has a family or close personal relationship OR prior business/professional relationship; OR

3. 3. is a person who routinely uses for business purposes the type of legal services offered by the lawyer

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

1. 1. The target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; OR

2. 2. the solicitation involves coercion, duress, or harassment

Note: lawyers are permitted to send truthful, nondeceptive letters to persons known to face a specific legal problem

Can a Lawyer participate with a prepaid or group legal service plan operated by an organization not owned or direct by the lawyer that uses live person to person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan?

Yes!

What does not constitue solicitation?

L’s comm doesn’t constitute solicitation if: its directed to the general public such as a billboard OR

if its in response to a request for information; OR is automatically generated in response to internet searches

Communications about a Lawyer’s services: When communicating about the Lawyer or the Lawyer’s services, the statement must NOT be:

1. 1. False; OR

2. 2. Misleading

When is a communication false or Misleading?

if it contains a material mis representation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading

Communication about Firm names: a firm may be designated by the names of:

1. 1. its current members

2. 2. the names of deceased members where there has been a succession in the firm’s identity or

3. 3. by a trade name if its not false or misleading

When is a law firm or designation misleading?

if it implies a connection with a government agency or a deceased lawyer who was not a former members of the firm with a L not associated with the firm or a predecessor firm or with a nonL or with a public or charitable legal services organization

If a private firm uses a trade name that includes a geographical name such as “springfiled legal clinic,” then

an express disclaimer that it is not a public legal aid agency may be required to avoid a misleading implication

a law firm with offices in more than 1 jurisdiction may use

the same name or other professional designation in each jurisdication

The name of a lawyer holding public office shall not be used in

name of a law firm or in communications on its behalf during any substantial period in which the lawyer is not actively and regularly practicing with the firm

Lawyers sharing office facilities BUT who are not in fact associated with each other in a law firm MAY NOT

denominate themselves as For example “ Smith and Jones” because it suggests that they are practicing law together

If lawyers truly are practicing in a partnership, the lawyers are

joint and severally liable for the obligations of the law firm

What is the rule on communications regarding specialty fields of practice and specialization

A lawyer may communicate the fact that the Lawyer does or does not practice in particular fields of law

A lawer shall not state or imply that a Lawer is certified as a specialist in a particular field of law unless

1. 1. The lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the district of Columbia or a U.S. territory or that has been accredited by the ABA, AND

2. 2. The name of the certifying organization clearly is identified in the communication