New trial ordered for criminal defendant after attorney failed to provide effective assistance of counsel and failed to seek to suppress evidence

 Here is an interesting fact scenario.  A criminal defense lawyer does not effectively represent a suspect during a police interview, and the police obtains information useful to the prosecution.  The lawyer then realizes that he should try to fix the problem but doing so would require him to file to suppress evidence from that interview on grounds of ineffective assistance of counsel.  But this would mean the lawyer has to admit their own ineffective assistance which would be self-incriminating (and would probably require the lawyer to testify in a fact finding hearing).  So the lawyer does not file to suppress the evidence and continues to represent the defendant.  After the defendant is convicted, represented by a different lawyer, the defendant asks for the conviction to be overturned.  What should the court do?

In a recent case with similar facts, the Massachusetts Supreme Court upheld an order for a new trial. Go here to read about the case and access a link to the opinion.  The Legal Profession Blog has a summary and some key passages here.

Articles on why the allegations against Fani Willis are irrelevant to the criminal case

 If you have been watching the news about the case against former president Trump in Georgia, you know that the defendant has argued the case should be dropped or that the prosecutor should be disqualified because of certain alleged inappropriate conduct. 

The conduct in question should be taken seriously but it is irrelevant to the case in question.

Here are two articles that explain why:

Why Fani Willis Is Not Disqualified Under Georgia Law, in Just Security, by Norman L. Eisen, Joyce Vance and Richard Painter

Defendants in the Georgia election case have no reason to complain — even if the Fani Willis allegations are true, in CNN, by Bruce Green

Breaking news: ABA House of Delegates approves changes to Model Rule 1.16

Last February, the ABA House of Delegates, which is comprised of 597 delegates from ABA entities and state, local and specialty bar associations, adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the longstanding attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities.

Following this policy, yesterday, the HoD adopted an amendment to Model Rule 1.16 "to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities."

Reportedly, there was a lengthy debate on the proposal but it was eventually approved by a vote of 216-102.

The amendment creates a duty to "inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation" and adds a new (a fourth) case in which lawyers are obligated to refuse to represent a client or to withdraw from representing a current client.  

This section of the amendment states that the a lawyer shall not accept the representation or shall withdraw from representation if "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.

As you probably know, Model Rule 1.16(a) lists the circumstances when a lawyer is required to withdraw, while 1.16(b) lists the circumstances in which a lawyer may withdraw.  Model Rule 1.16(b)(2) states that a lawyer may withdraw if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent."

The original proposal before the House of Delegates eliminated this discretionary duty and essentially converted it to an obligation.  But, at some point in the process it was decided to keep section 1.16(b)(2), so now we have a mandatory duty related to a client's intent to engage in fraud, etc, and a separate discretionary duty.  

That can be confusing so we will have to wait and see how they are interpreted.

You can read the Resolution that was approved and its full report here.

Oklahoma court: past sexual relationship between judge and prosecutor entitles criminal defendant to new trial; should more cases be reversed?

An Oklahoma court recently held that the fact that a judge and a prosecutor were involved in a sexual relationship during the beginning stages of a murder trial entitles the defendant to new trial.  The ABA Journal has the story here.  

You can read the court's opinion here.

If the relationship had been ongoing during the trial, this result would not be surprising, of course.  In this case, the judge and prosecutor were in a relationship during the initial stages of the case only.  The trial itself happened two or three years later. 

One interesting question is whether the judge and the prosecutor should be subject to discipline for concealing the relationship while it was ongoing.  The judge resigned his judgeship in spring 2021—after the prosecutor and two other lawyers accused him of sexual misconduct.

The judge acknowledged sexual relationships with two prosecutors, but he said they were consensual.  A special prosecutor declined to bring charges in connection with the allegations.

Now I wonder if all the criminal cases tried by those prosecutors and presided by the judge should be looked into.  If I were a criminal defense lawyer, I would look to see if I had represented any defendants during the years that they had ongoing relationships.

ABA issues new opinion on lawyers passive investment in law firms that include non-lawyer owners -- UPDATED

The ABA's Standing Committee on Professional Responsibility and Ethics recently issued a new Ethics Opinion on whether lawyers may invest in law firms with non-lawyer owners. The opinion's summary reads as follows:  

A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms. To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction. The fact that a conflict might arise in the future between the investing lawyer’s practice and the ABS’s work for its clients does not mean that the lawyer cannot make a passive investment in the ABS. If, however, at the time of the investment the lawyer’s investment would create a personal interest conflict under Model Rule1.7(a)(2), the lawyer must refrain from the investment or appropriately address the conflict under Model Rule 1.7(b).

You can read the full opinion (Formal Opinion 499) here. 

You can read more about the opinion in LawSites and the ABA Journal.

UPDATE 9-19-21:  

Faughnan on Ethics has a comment here.

The San Diego County Bar Association has a comment here.

UPDATE 10/10/21

Legal Ethics Advisor has a comment here.

New Jersey Supreme Court on arbitration clauses in attorney retainer agreements

Late last year, the New Jersey state supreme court held that law firms that want to include mandatory arbitration provisions in their client engagement agreements must explain to the client the benefits and disadvantages of arbitrating a prospective dispute.  The case is called Delaney v. Dickey, and you can read it here.

The Law for Lawyers Today has a comment here.

NJ Supreme Court validates use of mandatory arbitration clauses in retainer agreements

The New Jersey Supreme Court in Delaney v. Sills has validated the use of retainer agreements that provide that all disputes between attorney and client shall be subject to arbitration. On the other hand, the court emphasizes that the fiduciary nature of the attorney-client tie requires candid explanation to the client of the advantages and disadvantages of the arbitral forum.

In my opinion, mandatory arbitration agreements are inherently bad for consumers and lawyers should not be allowed to impose them on their clients.  I am glad that the court says lawyers have an obligation to explain the pros and cons of arbitration, but what good does that do when prospective clients are all but forced to accept it if they want the lawyer of their choice?  

The court summarized its decision as follows:

For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. . . . That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics (ACPE), which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action . . .. 

George Conk (a member of the ACPE) has a detailed comment on the decision here.  The Louisiana Legal Ethics Blog has a comment comparing the decision with the current state of the law in Louisiana.

ABA issues new formal ethics opinion on conflicts of interest

Last week, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new opinion on "conflicts arising out of a lawyer’s personal relationship with opposing counsel."  (The opinion was released on October 7, but for some reason, it is dated July 29.)

The opinion is not too long, it is well written and logical.  It applies the analysis that we all know related to "material limitations" out of Model Rule 1.7(a)(2) to circumstances involving relationships between lawyers, suggesting that the answer to the question whether a relationship can material limit the representation of a client is "it depends."  On the relationship:  the opinion uses three categories of relationships and suggests that they vary in terms of the risk of material limitation that they present.

You can read the full opinion here, but meanwhile you can check its summary, as it appears on the opinion itself:

Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer. A personal interest conflict may arise out of a lawyer’srelationship with opposing counsel. Lawyers must examine the nature of the relationship to determine if it creates a Rule 1.7(a)(2) conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

To assist lawyers in applying Rule 1.7(a)(2), this opinion identifies three categories of personal relationships that might affect a lawyer’s representation of a client: (i) intimate relationships, (ii) friendships, and (iii) acquaintances. Intimate relationships with opposing counsel involve, e.g. cohabiting, engagement to, or an exclusive intimate relationship. These relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing clients in the matter, unless each client gives informed consent confirmed in writing. Because friendships exist in a wide variety of contexts, friendships need to be examined carefully. Close friendships with opposing counsel should be disclosed to clients, and, where required as described in this opinion, their informed consent obtained. By contrast, some friendships and most relationships that fall into the category of acquaintances need not be disclosed, nor must clients’ informed consent be obtained. Regardless of whether disclosure is required, however, the lawyer may choose to disclose the relationship to maintain good client relations.

You care read more about the opinion in the ABA Journal, which has a short summary, on Faughnan on Ethics and on the Lawyer Ethics Alert Blog.

New Jersey considers adopting exception to duty of confidentiality to prevent or remedy wrongful convictions

Long time readers of this blog might remember an incident reported a few years ago out of Chicago that involved two lawyers who came forward to disclose that they knew that a man named Alton Logan had been convicted (and sentenced to life) 26 years earlier for a crime he did not commit.  The lawyers had not disclosed the information sooner because they had obtained the information from one of their own clients, who had confessed to them that he had committed the crime for which Alton Logan had been convicted.

At the time of the confession, the lawyers tried to obtain consent from their client to disclose the confidential information, but they were only able to get him to consent to disclose after his death...  and then he proceeded to live for another 26 years.

When the lawyers finally came forward, the incident got national coverage (including a segment in the TV show 60 minutes) and sparked a debate on whether states should recognize an exception to the duty of confidentiality to allow lawyers to disclose information when reasonably necessary to prevent or remedy a wrongful conviction.

Attempts to amend the ABA Model Rules for this purpose have never progressed very far within the ABA, but there are two states that currently recognize such an exception (Massachusetts, and Alaska).  Soon there may be three.  (North Carolina has a rule imposing a duty to disclose information but, oddly, it does not operate as an exception to the duty of confidentiality because it does not allow disclosure if the disclosure is against the interest of a client or former client.)

The New Jersey Supreme Court recently published a task force report with a recommendation to adopt an exception to the duty of confidentiality to require lawyers to disclose information that demonstrates that an innocent person has been wrongly incarcerated.

The recommendation, however, was not unanimous and there is a strong dissenting opinion. Also, the task force members who were in the majority were divided on whether the exception should be mandatory or permissive.

You can read the report here.

Recognizing that lawyers who reveal client confidences to remedy a wrongful incarceration necessarily harm their own client, the majority concludes that that disclosure of such information strongly serves the interest of justice and enhances public confidence in the criminal justice system. "On balance," the report states, "an exception for this purpose is justified because the suffering of the wrongly incarcerated person is great, while the universe of confessing clients is likely to be exceptionally small."

The exception to the duty of confidentiality related to wrongful convictions in two of the three states that currently have such an exception is permissive.  In North Carolina, there is a mandatory duty to disclose, but it has such restrictions that make the duty a very limited one.  As stated above, the rule does not allow disclosure if it is against the interest of a client or former client, which means that the disclosure is not allowed as an exception to the duty of confidentiality.

Interestingly, the New Jersey task force members who support the adoption of a new exception to the duty of confidentiality were divided on whether the new rule should be mandatory or permissive.  The majority proposed a mandatory duty to disclose, but again, this was not a unanimous position.

In contrast, a strong minority of the task force, including representatives of the Offices of the Attorney General and Public Defender, opposes a new exception to the duty of confidentiality arguing that lawyers should not disclose (much less be forced to disclose) information that is likely to expose their clients to criminal liability because the proposed exception would require lawyers not only to betray their clients, but also to inflict direct harm on them.

This is a very difficult question for me because I can see the strengths in both sides of the argument and, for that reason I have changed my mind back and forth thinking about it over time.

Given the inadequacies of our criminal justice system, I find the argument for an exception compelling but I can also see the obvious clash with one of the most fundamental values that we hold as a profession.

So, help me decide.  What do you think?

How not to practice law: enter into a transaction with a client, don't make full disclosures and take advantage of a position against the client's interests

As you probably know, lawyers are allowed to enter into financial transactions with clients but there are significant requirements that need to be met.  Courts are typically not forgiving when a client, or former client, complains and a review of the transaction shows that the lawyer obtained an advantage over the client.  This is straight forward, but every now and then, we get a reminder of the problems that can arise, and of how unforgiving courts can be.

And here is the reminder:  In a recent case, the Supreme Court of Nebraska disbarred an attorney who entered into a business deal with a client without complying with the requirements of the rules of professional conduct.

According to the court, the case "provides a textbook example of the ethical mine-field that is laid when an attorney enters into a business transaction with clients whose interests are adverse, without providing the full disclosure required by the ethical rules."

The case is called State ex. rel. Counsel for Discipline of the Nebraska Supreme Court v. Chvala, and you can read the opinion here.

Thanks to Bill Freivogel for sending me the update!

Discipline for attempting to violate the rule on sex with clients

Model Rule 8.4, which is the basis of Rule 8.4 in most, if not all states, holds that it is professional misconduct for a lawyer to "violate or attempt to violate" the Rules of Professional Conduct.  Yet, you rarely see cases imposing discipline for an attempted violation of the rules.

This makes Lawyer Disciplinary Board v. Sayre interesting.  In this case, the Virginia Supreme Court imposed discipline on an attorney for a number of offenses and one of them involved an attempt to violate the rule against sex with clients.  The lawyer admitted that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with a client. Because his attempt was unsuccessful, the Court ruled the conduct was not a violation of rule 1.8, but it was a violation of rule 8.4.

The Legal Profession blog has a summary here.

Can a law firm file competing amicus briefs in one same case?

A couple of weeks ago, the New York State Bar Association issued an ethics opinion with an answer to this interesting question:  can the same law firm file amicus briefs on both sides of a Supreme Court case?

And the answer is, as it so often is,... "it depends."

The question originated when a law firm asked its lawyers if any of them would be interested in preparing an amicus brief for filing with the Court.  The problem was that some lawyers wanted to argue one side of the issue, while others wanted to argue the opposite side. 

Given the division of opinions, the firm management decided to create two separate teams to work on their respective positions and then to ask the NY State Bar Association Ethics Committee if they could file both briefs.

In it opinion (Opinion 1174), the Committee concludes that the firm can't file either brief if two clients ask the firm to submit amicus briefs on opposing sides of an issue because New York’s Rule 1.7 bars a lawyer from representing clients on both sides of the same litigation. 

However, in this case the interest in filing the briefs did not come from a client request.  Here, the lawyers were to appear pro se.  Thus, as long as the attorneys appeared in their own name, rather than in the firm's name, the Committee found no ethical reason why attorneys may not file amici briefs on opposing sides of a question before the Court.

You can read the opinion here.  The Law For Lawyers Today has a post on the opinion here.

Meanwhile, over at Faughnan on Ethics, Brian Faughnan argues that it is not clear what the answer would be if one lawyer from the firm was filing on behalf of a client and then another lawyer in the same law firm wanted to file an opposing brief pro se.  If it is true that lawyers are "as free as anyone" to file pro se briefs in any cases, it would seem that the answer is that the pro se lawyer would be allowed to file the amicus brief.  Yet, this situation would look too similar to having an attorney from a firm arguing on both sides of the "v." in a litigation matter. 

How not to practice law: have your client's wife pay the client's bill by giving you a lap dance and having sex with you

Need I say more?  The Legal Profession Blog has a summary here.  The complaint is here.

Supreme Court of Oklahoma imposes a bizarre sanction: barring an attorney from representing, or even meeting with, females

A few days ago, the Oklahoma Supreme Court issued a short opinion in which it imposes the most bizarre sanction I have ever seen in a disciplinary case.  It generated a great exchange in the Professional Responsibility professors' list serv and many of the points I am going to make below are taken from that discussion.  The case is called State ex rel. Okla. Bar Ass’n and the opinion is available here.

But before we get to all that, let's review the facts of the case.  The lawyer in question, one Richard Stout, was charged with three counts of misconduct. In one, it was alleged (and later proven) that he represented a woman in her divorce case. While the representation was ongoing, he sent her sexually suggestive text messages but because she wanted her divorce completed as quickly as possible she didn’t fire him.  In another, it was alleged (and also later proven) that he had sex with a client who said she did it because she was “in a desperate situation” financially.  Finally, in the third one, it was alleged - and proven - that, about a year later, Stout made unwanted sexual advances and sent sexually suggestive messages to another female client who ultimately terminated the representation.

Based on these facts, the court found that Stout’s actions violated several rules of professional conduct, including the prohibition on representing a client when there’s a conflict of interest, the prohibition against having sexual relations with a client (which has exceptions but none of which were applicable in this case), and a rule of the Oklahoma Rules Governing Disciplinary Proceedings which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."

However, the court also found that the lawyer expressed “sincere and deep remorse toward his clients,” voluntarily consented to therapy, and offered to not take on female clients in the future.

Based on these "mitigating" circumstances, the court decided to impose only a three-month suspension.

At this point we could stop and discuss whether that sanction is too lenient; but there are more interesting things to talk about.

Here is where it gets interesting.  After stating the three month suspension, the court added that the lawyer had to abide by the following conditions: (1) Mr. Stout shall not accept female clients and will not meet alone with a female at any time associated with his practice of law; (2) he will remain in treatment as recommended by his counselor; (3) he will remain in contact with Lawyers Helping Lawyers; and (4) he will maintain site blocking protection on his electronic devices.

Let's start with number 4...  So the court is telling the lawyer he can't access certain websites [I assume related to pornography].  I have two questions:  how is the state going to monitor, or enforce that?  But more importantly, isn't that a violation of the lawyer's first amendment rights?  Can the state control the content of a lawyer's books, or magazine subscriptions as a condition to practice law?

Then let's talk about what the law professors were talking about today: condition number 1.  The court is telling the lawyer that he can not be alone with females in relation to the practice of law. 

This sanction raises many questions.  For example, is the lawyer now going to be required to post notices in appropriate places (entrance to his office, his website, etc) warning, or at least informing, that females must be accompanied when contacting him in person?  Can the lawyer hire female staff or associates (because there is always a chance he might find himself alone with them in the office)?  How is he going to conduct business with female lawyers?

Then there is the question of whether the sanction becomes state mandated discrimination on the basis of gender.  And if it is, would the Oklahoma Bar ever consider prohibiting a lawyer from accepting African-American clients in response to a lawyers misconduct involving racist conduct?  And if the answer to that is no, how does the court justify saying it is okay to mandate discrimination on the basis of gender but it is not okay to mandate discrimination on the basis of race?

Now this question has several layers.  First, it is a generally accepted proposition that lawyers can discriminate when choosing clients.  Even the recently adopted Model Rule 8.4(g) recognizes this.  However, at the same time, it is possible that lawyers may be subject to penalties for violating state or federal anti discrimination laws.  For example, Illinois Rule 8.4 recognizes this, and makes it misconduct to violate these laws.  In other words, in Illinois is it not misconduct to discriminate unless the discrimination is found to be a violation of the law.  Thus, in many states, lawyers can choose to represent only people of one gender if they want.  There are law firms out there that do so.

There are firms who represent only men in divorces cases. (See here, for example.)  What is different in this case is that the lawyers in those firms have chosen to represent only men; in the Stout case, the court is forcing the lawyer to do so. As a penalty.  Because he presumably can't handle it.  And that, to me, makes a difference.

I don't like that this opinion, when published, will set a precedent that allows a court to micro manage the practice of a disciplined attorney.  Can the court now tell lawyers that they can't get involved in certain types of cases, or represent certain types of clients?

And what if a woman wants Stout to represent her?  Why does the court prevent her from choosing her lawyer?  To protect her?

If this man is so out of control that he can't even be trusted to be in a room alone with a female in a professional setting, is he really fit to practice law at all?

If the lawyer is competent to practice law, he should be competent to represent the clients who want to hire him.  If he is incompetent to represent women, he should be considered incompetent to represent anyone.  He should have been suspended indefinitely until he was able to show he could be trusted to practice again.

Tennessee Supreme Court imposes sanctions for improper contingency fee

A few days ago I saw a report on a case out of the Tennessee Supreme Court on a topic that you don't see that often:  an unreasonable contingency fee agreement.  The practice of using contingency fees is, of course, common; and the practice of structuring the contingency itself as a percentage of the recovery is standard.  In most cases, the percentage is about 33%.  That is also pretty standard.  And that is why I don't think we see many cases on this topic.  Everybody pretty much does the same thing because the market regulates itself.

Yet, here we have a new case with a twist on the practice of using contingency fees.

The lawyer in the case entered into a contingent fee agreement with his client, which provided that if the client refused to accept a settlement offer that the lawyer advised was reasonable and should be taken, the client would be required to pay the lawyer the contingency fee “on the basis of that offer” unless waived by the lawyer.

As you would expect given the end result of the case, the defendant made an offer, the lawyer advised the client to take it, but the client refused.  The lawyer then withdrew from representation and asked for a lien against his client’s eventual recovery in her personal injury case for fees and expenses based on the original agreement.

The court agreed with the hearing panel that the contingent fee agreement was unreasonable and violated the Rules of Professional Conduct because the Rules only allow a contingency fee on the outcome of the matter. The Court also agreed with the hearing panel that the contingency fee agreement violated the Rules of Professional Conduct because it gave the lawyer a proprietary interest in any settlement offer arising in the case.  Thus, the Court affirmed the judgments of the trial court and the hearing panel imposing a public censure.

As it is often the case, whether public censure, one of the lightest possible sanctions out there, was the correct measure of discipline is debatable.  But I supposed reasonable people can disagree on that and it is the subject of a different conversation.

The case is Moore v. Board of Professional Responsibility and you can read the opinion here.

Faughnan on Ethics has a comment on the case here.  As he clearly explains, "[a]t its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a)."

Ohio Supreme Court continues trend of suspending lawyers for violation of rule against having sex with clients

The Law for Lawyers Today is reporting that "[t]he Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended."  Go here for details and analysis.

Texas Bar issues opinion on whether attorney can renegotiate a flat fee

Long time readers of this blog might remember that I have published a couple of short articles on flat fees. (See here and here, for example.)  One issue related to flat fees that is interesting is whether an attorney should have the right to renegotiate the fee if it turns out that he or she miscalculated the amount of time the legal services would take.  Obviously, you would think that once the fee agreement is set, the attorney can't unilaterally change it to force the client to pay more.  The main reason a client would agree to a flat fee is the fact they know ahead of time how much the total fee will be.

This puts an attorney in a difficult position when it turns out the amount of work the fee pays for turns out to be a lot more than expected.  The attorney could ask the client to pay more, but what if the client refuses?  After all, they have a contract that says the services would be provided for the agreed amount and therefore have the right to expect the work will be done regardless of how much work it is.  In a case like that, the lawyer miscalculated and would suffer the consequences of his/her mistake.  Like I said, I guess there is nothing that says that the lawyer can't ask the client to pay more, but if the client refuses, the lawyer has to suck it up -- do the work diligently, competently and completely even if it means taking a financial loss.

So the question I would ask is whether it would be ethical for the lawyer to include in the initial contract a clause allowing the lawyer to recalculate or at least to force the client to agree to renegotiate the fee under certain conditions.

A few months ago, the Texas Bar issued an Ethics Opinion partially addressing the issue.  It concludes as follows:

A lawyer may renegotiate his fixed, flat fee for representing a client in a litigation matter after the litigation is underway if modification of the fee agreement is fair under the circumstances. The burden of proving fairness is the lawyer’s and will depend upon factors such as the length of the lawyer-client relationship, whether the reason for the renegotiation could have been anticipated at the outset of the representation, and the client’s level of sophistication. Before seeking to renegotiate a fixed fee, the lawyer should be mindful of the risks that the lawyer voluntarily assumed when proposing or agreeing to that fee—including the possibility that the fixed fee might not be adequate to compensate the lawyer when compared to other fee arrangements.

Notice that the opinion refers to "renegotiating the fee" not to including something in the initial contract.  Does that mean that the opinion considers it ethical for an attorney to seek to renegotiate with the client, or that it would be ethical for the attorney to change the terms of the original agreement?   It is not clear, but it seems to me it is talking about whether it is ethical to ask the client to renegotiate, and it concludes that it would be depending on certain factors.

But, to me, that does not really answer some of the other important questions.  Let's say it is ethical for the attorney to ask, what happens if the client refuses to agree to the new proposed fee?  Can the attorney force the client to accept new terms?  Does the fact that the attorney can ask a client to renegotiate the terms of the contract, make the new terms themselves part of the contract?    My guess is that these questions would need to be addressed in the original contract and the client would have to agree to the terms ahead of time.

Also notice that the opinion seems to be limited to litigation.  Why is that?  What if a client asks me to prepare a will and I agree to do it for a flat fee of $100, which is my hourly fee, because I think it won't take me more than an hour.  Later I realize it will take me a lot longer than that. If the language of the opinion is limited to litigation, I'd have to suck it up, which a litigator wouldn't.  Why the difference?  What makes their time or work more valuable than mine?

You can read the full opinion (which is very short) here.

ABA Opinion 484: can a lawyer refer a client to a financing company in which the lawyer owns a financial interest?

At the end of November, the ABA Committee on Professional Responsibility issued Formal Opinion 484 on whether a lawyer may refer a client to a fee financing companies in which the lawyer owns a financial interest.  I have not read the opinion in full, so I can't comment on it at this time.  Here is the summary:

Lawyers may refer clients to fee financing companies or brokers in which the lawyers have no ownership or other financial interests provided they comply with Model Rules 1.2(c), 1.4(b), 1.5(a) and (b), 1.6, 1.7(a)(2), and 1.9(a). If a lawyer were to acquire an ownership or other financial interest in a finance company or brokerage and thereafter refer clients to that entity to finance the lawyer’s fees, the lawyer would be entering into a business transaction with a client, or obtaining a security or pecuniary interest adverse to the client, or both. In that instance, the lawyer would also be required to comply with Model Rule 1.8(a).

Vermont adopts rule regulating sexual relations with clients

Ethical Grounds is reporting that the Vermont Supreme Court recently adopted a version of Model Rule 1.8(j) which regulates sexual relations with clients.  The model rule has been in place for quite some time, and quite frankly I am surprised to hear it had not been adopted sooner.

New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys

You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.

Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns?  The New York Times discusses the issue in a recent article you can access here.