Ethical Considerations in Landlord-Tenant Law Edward L. Robinson Joseph & Hollander, P.A. Wichita, KS (316) 262-9393 erobinson@josephhollander.

com 1) Getting Paid: Fee Arrangements [Rule 1.5] a) How Do I Document my Fee? i) New clients: shall be communicated to client, preferably in writing, before or within a reasonable time after commencing the representation [1.5(b) and cmt. 1] ii) An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the clients interest (1) Example: when services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client [Cmt. 3] (2) It is proper to define the extent of services in light of the clients ability to pay [Cmt. 3] b) How Much Can I Get Paid? A Reasonable Amount [1.5(a)] i) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; ii) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; iii) The fee customarily charged in the locality for similar legal services; iv) The amount involved and the results obtained; v) The time limitations imposed by the client or by the circumstances; vi) The nature and length of the professional relationship with the client; vii) The experience, reputation, and ability of the lawyer or lawyers performing the services; and viii) Whether the fee is fixed or contingent. i) Hourly fee (1) Must be reasonable (based on several factors) (2) Should be memorialized by engagement letter (3) Retainer (a) A lawyer may require advanced payment of a fee, but is obligated to return any unearned portion [1.5 cmt. 2; 1.16(d)] ii) Contingent fee
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c) What Fee Structures Can I Use?

iii) Hybrid (Hourly + Contingent) (1) Reduced hourly fee with performance bonus in form of contingent fee (2) Example: $100/hr + 15% of amounts recovered after expenses iv) Flat Fee (1) Defined amount for the scope of work v) Other d) Can I Get Paid in Other Than Money?

(1) Allowed in landlord tenant cases (2) When there is a doubt whether a contingent fee is consistent with the clients best interest, the lawyer should offer the client alternative bases for the fee and explain their implications

i) Property (1) A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, provided this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j) [Cmt. 2] (a) Lawyer may acquire a lien authorized by law to secure the lawyers fee or expenses [1.8(j)(1)] (b) Lawyer may contract with a client for a reasonable contingent fee in a civil case [1.8(j)(2)] (2) A fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyers special knowledge of the value of the property [Cmt. 2] ii) Business Relationships: prohibited unless (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; and (2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction [1.8(a)]. iii) Testamentary Gifts: A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the

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2) Conflicts of Interest

e) Who Can Pay Me? i) Rule 1.8(f): a lawyer shall not accept compensation for representing a client from one other than the client, unless: (1) The client gives informed consent; (2) There is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) Information relating to representation of a client is protected as required by Rule 1.6. ii) Rule 1.7, Cmt. 13: if acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of [Rule 1.7(b)] before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.

iv) Literary Rights Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation [1.8(d)] v) Sex No fee couch: a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced [1.8(k)]

lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, client, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship [1.8(c)]

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a) Rule 1.7: When do I have a concurrent conflict of interest, and what do I do about it? i) 1.7(a): a concurrent conflict exists if: (1) The representation of one client will be directly adverse to another client; or (a) What is directly adverse [Cmt. 6] (i) + A lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated (ii) + When a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit (iii) Simultaneous representation in unrelated matters of clients whose interests are only economically adverse

b) Rule 1.8: Things You Cant Do Regarding Current Clients i) Do Business with Your Client (you and your firm)

iii) Non-Consentable Conflicts: if any of the items in 1.7(b) are false

ii) 1.7(b): if you have a concurrent conflict, you may still represent the client if all of the following are true: (1) You reasonably believe that you will be able to provide competent and diligent representation to each affected client; (2) Your representation is not prohibited by law; (3) Your representation does not involve the assertion of a claim by one client against another client represented by you in the same litigation or other proceeding before a tribunal; and (4) Each affected client gives informed consent, confirmed in writing.

(2) There a substantial risk that representing one or more of your clients will be materially limited by my responsibilities to another client [Rule 1.8], a former client [Rule 1.9], a third person [Rule 1.17], or by your own personal interest [Cmt. 10-11] (a) When it is a substantial risk [Cmt. 7] (i) If there is a significant risk that a lawyers ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyers other responsibilities or interests (ii) + Representing several individuals seeking to form a joint venture

ii) Use Your Clients Information to their Disadvantage (you and your firm)

1.8(a). A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; and (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

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1.8(b). A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

iii) Ask for or Receive Substantial Gifts from Your Client (you and your firm) 1.8(c). A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, client, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

iv) Purchase the Literary Rights to their Case (you and your firm)

v) Help Your Client Financially Afford the Case (you and your firm)

1.8(d). Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. 1.8(e). A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. 1.8(f). A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. Participate in Aggregate Settlements (you and your firm) 1.8(g). A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

vi) Let Someone Other than Your Client Pay Your Fee (you and your firm)

vii)

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viii)

Prospectively Limit Your Liability (you and your firm)

ix) Litigate Against Parties Represented by Your Family (you and your firm)

1.8(h) A lawyer shall not: (1) 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 (2) 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. 1.8(i). A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

x) Acquire Proprietary Interest in the Litigation (you and your firm) 1.8(j). A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case. xi) Have Sex with Your Client (just you) 1.8(k). A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. i) Play Both Sides (yourself) 1.9(a). A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. 1.9(b). A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

c) Rule 1.9: Things You Cant Do Regarding Former Clients

ii) Play Both Sides (your firm)

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iii) Reveal Their Information

(1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; Unless the former client gives informed consent, confirmed in writing.

1.9(c). A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. d) Rule 1.10: When Your Firm Gets Disqualified as Well i) 1.7 and 1.9 Apply Unless it is Your Personal Interest Creating the Conflict 1.10(a). While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

ii) If You Leave the Firm and Take Your Clients, the Firm Can Become Adverse to the Clients You Take With You 1.10(b). When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9 (c) that is material to the matter. 1.10(c). A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
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iii) The Client Gets the Final Say

3) Dealing with Unrepresented Parties a) Rule 4.3 In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. In re Jensen, 286 Kan. 1160 (2008):

b) What does this mean?

Lawyers must take special care in dealing with persons who are not represented by counsel. KRPC 4.3 provides the requirement [in] this regard:

'In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.'

4) Illegal Immigrants/Aliens
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The Respondent either knew or reasonably should have known that Mr. Jenkins misunderstood the Respondent's role in the post-divorce child custody matter. The Respondent introduced himself to Mr. Jenkins as an attorney in the case involving Rich and Jennifer Duncan. The Respondent never explained that he was the attorney for Mr. Anderson. He testified that his reason for not doing so was that Mr. Jenkins had received the subpoena issued by Ms. Shultz and Mr. Jenkins knew that the Respondent was not Ms. Shultz or representing anyone in Ms. Shultz' office. Nevertheless, Mr. Jenkins formed the belief that the Respondent represented Rich and Jennifer Duncan and a majority of the Hearing Panel finds this belief reasonable. The Respondent had referred to himself as an attorney in the case involving Rich and Jennifer Duncan, not the case involving Mr. Anderson; asked if Mr. Jenkins had received the subpoena, which Mr. Jenkins knew was being sent by the attorney for Rich and Jennifer Duncan; called Mr. Duncan by his first name; and knew detailed information regarding Mr. Duncan. The Respondent knew or should have known of Mr. Jenkins' misunderstanding, particularly after Mr. Jenkins presented information which the Respondent did not request and made arguments about the benefits to the children from the move. After the misunderstanding occurred, the Respondent did nothing to correct the misunderstanding. Thus, because the Respondent should have known of Mr. Jenkins' misunderstanding and because the Respondent did not correct the misunderstanding, the Hearing Panel concludes that the Respondent violated KRPC 4.3.

a) Illegal Immigrant as Client i) Rule 1.4: Communications (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

b) Illegal Immigrant as Adversary i) Represented by Counsel (1) Rule 4.2

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

ii) Unrepresented Person (1) Rule 4.3

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

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