Legal Ethics Considerations for Counsel Leveraging the Agreement to - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A Drafting Client Engagement Agreements: Legal Ethics Considerations for Counsel Leveraging the Agreement to Defend Against Disciplinary Actions and Malpractice Claims THURSDAY, JUNE 8, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: A. Neil Hartzell, Shareholder, LeClairRyan , Boston Megan Zavieh, Attorney, Zavieh Law , Alpharetta, Ga. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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C LIENT E NGAGEMENT A GREEMENTS : E THICAL C ONSIDERATIONS FOR C OUNSEL A. Neil Hartzell LeClairRyan One International Place Boston, MA 02110 neil.hartzell@leclairryan.com Megan Zavieh 5 Zavieh Law 12460 Crabapple Road, Suite 202-272 Alpharetta, GA 30004 megan@zaviehlaw.com

S UMMARY O UTLINE  Important Provisions  Client identification  Scope of engagement  Terms of Payment  Staffing Concerns  Conflicts  File and documentation retention  Defending Disciplinary Proceedings  Defending Malpractice Claims 6

I MPORTANT P ROVISIONS OF E NGAGEMENT L ETTERS 7

C LIENT I DENTIFICATION  Identify in Engagement Letter  Corporation and Board Members  Close Corporations and Family Members  Trust and Estate Matters; Trustees and Family Members  Multiple Parties in Criminal Cases  Corporations and Subsidiaries  Put it in writing 8

O RGANIZATION AS C LIENT  ABA Model Rule 1.13 you represent organization  Rule provides guidelines as to what happens if facts come to light adverse to corporation  Shareholder or Board Member asks you for advice  Is there a conflict?  Can conflict be waived?  In Writing  All involved must consent 9

S COPE OF E NGAGEMENT  Changes During Representation  Additional Matters  New parties  New family member  Subsidiary of Corporation  Parent corporation  Send updated Letter Describing Work Scope and Identifying What Will Happen If Conflicts Develop 10

S COPE OF E NGAGEMENT  How and When Can Client Terminate Representation  How and When Can Lawyer/Firm Terminate Representation  Provision For Payment of Fees When Representation Terminates  Contingent Fees; Payment For Value of Services If Representation Terminated  Multi Firm Representation 11

S COPE OF E NGAGEMENT  Representing XYZ corporation as plaintiff or defendant in a Specific Litigation  Representing Individual or Corporation in Investigation  Representing party in Environmental Matters  Investigation?  Appearances before state or federal agencies?  Litigation?  Should Always Clearly Identify 12

T ERMS OF P AYMENT  Put all terms of payment in engagement letter  Rates and who will be primarily responsible attorney and how the client can get in touch with you  Representing friends and family members: always put in writing  Relationships change; people develop health problems or die  Third Party Paying For Fees and Expense. See ABA Model Rule 1.8(f)(1) and (f)(2)  Informed Consent  No interference with protected judgment or lawyer-client relationship  Information protected under 1.6  Factoring Companies 13

T ERMS OF P AYMENT  Know About Restrictions  Cannot Charge Fee In Domestic Relations Matters contingent on securing of divorce, amount of alimony or support or property settlement  Representing a Defendant in a Criminal Case  Division of Fees  Disclosed in Writing  Total Fee is Reasonable 14

T ERMS OF P AYMENT  Increases in Rates  Contingent Fees  See ABA Model Rule 1.5  Always put in writing  Some states now require it; model rules require it  Know about restrictions on contingent fees  Must be Reasonable  How Expenses are Paid Needs to Be in Writing As Well 15

S TAFFING C ONCERNS  Have language in Engagement Letter Identifying who will work on case  Add such other attorneys and staff in the primary attorney’s judgment as necessary to represent client’s interests  Third Party Document Reviews  Consultants  Experts  Disclose and Obtain Written Confirmation  Insurers Require It 16

C ONFLICTS  Know ABA Model Rules  Rule 1.7 Current Clients  Rule 1.8 Current Clients; Specific Rules  Cannot Prospectively Limit Malpractice Liability unless client is separately represented when making agreement Model Rule 1.8(h)(1) 17

C ONFLICTS  Cannot Ask For Advance Waiver of Claims Arising From Violations of Disciplinary Rules See ABA Model Rule 1.8(h)(1) 18

E NGAGEMENT L ETTERS / C ONFLICTS  A conflict waiver in an engagement letter needs to be specific and is not always a guarantee of protection  Walton Houston Galleria Office LP v.s. Andrews Kurth LP, 2011-22533 (Harris County Texas)  Allegation for malpractice when conflict waiver signed without disclosing that other client was subject of SEC investigation 19

F ILE AND D OCUMENTATION R ETENTION  Folder For Original Signed Engagement Letter  Document Collection-Instructions In Writing  Clearly Label What You Have Received From Whom and When  Memos to File Regarding Interviews Regarding Document Collection  What Files Kept By Who At Client  Track Receipt of All Client Documents 20

D EFENDING D ISCIPLINARY P ROCEEDINGS  Overview of the attorney discipline system  Resources/Counsel  Responding to complaints  Key to a successful defense 21

O VERVIEW OF D ISCIPLINARY S YSTEM  Each state has own system – learn about yours  Generally an investigative/prosecutorial body  Investigation  Opportunity for hearing  Sanctions imposed  Resource for assistance – LAP (can favorably impact disciplinary process) 22

A VAILABLE R ESOURCES  States have ethics hotlines  Confidential  Advisory  States publish sample engagement letters – notice that they never include prospective limitations on discipline exposure 23

W HERE TO F IND C OUNSEL  APRL: Association of Professional Responsibility Lawyers  ADDC: California – Association of Discipline Defense Counsel 24

B AR C OMPLAINT : Y OUR F IRST S TEPS  Receive letter from the State Bar (or regulator)  Consider hiring counsel  RESPOND 25

R ESPONSE O PTIONS  No response at all  Never a good idea  Duty to cooperate  Tell them EVERYTHING  Likely not a good idea  Respond completely and effectively 26

D RAFTING A C OMPLETE AND E FFECTIVE R ESPONSE  Accept it  Read it  Stick to the deadline  Answer all questions  Address all cited rules  Read the rules – cite others to show compliance  Provide your engagement agreement to demonstrate what you agreed to do (and did not agree to do) 27

D RAFTING A C OMPLETE AND E FFECTIVE R ESPONSE  Detail affirmative steps taken to ensure compliance  Address mitigating factors (read rules to help identify them)  Back up your statements with verifiable facts and documents 28

A VOID P ITFALLS  Privilege – who is complaining witness? Privilege waiver?  Deadlines  Opening door to additional issues 29

G ET H ELP  Counsel (limited or full scope)  Advice of friends  Ask regulator for resources 30

K EYS TO S UCCESSFUL D EFENSE  Know the system  Respond in full and on time  Reasonable expectation of outcome  Run your practice to prepare for eventual complaint 31