INTRODUCTION

I assume it has been several months if not years since we have glanced through the rules

that guide our professional conduct as lawyers in the State of Oklahoma. First, the

guidelines, as written, are not exciting nor are they a captivating read that garners the

same enthusiasm as reading the most recent New York Times Best Selling book or

watching How to Get Away with Murder on Thursday evenings at 9:00 p.m. Second, we

likely only hurriedly scan the rules when we anticipate someone might have the audacity

to question our ethical behavior or, more importantly, we are in the midst of justifying

our professional conduct.

The Oklahoma Rules of Professional Conduct are located in Title 5 of the Oklahoma

Statutes. The rules are designed to assist us in our professional relationships with our

clients, other lawyer and the judiciary. I recall a law school professor at one point

proclaim that our ethics are guided, in part, by common sense and doing the right thing.

It seems somewhat interesting to look at the scope of the rules today and see a

confirmation of this theory. The scope of the rules state “The Rules of Professional

Conduct are rules of reason."1

Without drifting too far afield of the intended topic, it is also interesting to look at the

preamble to the rules and how it defines our role as lawyers.

A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

 As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.2

1 5 O.S.A. Ch. 1, App. 3-A Scope2 5 O.S.A. Ch. 1, App. 3-A Preamble

Within this backdrop, we will look at the Oklahoma Rules of Professional Conduct and

its guidelines for preventing conflicts of interest, establishing the fee between with the

client and maintaining client confidentiality.

A. Preventing Conflicts of Interest

The Oklahoma Rules of Professional Conduct address three separate areas where

conflicts potentially arise. Rule 1.7 discusses conflicts of interest with current clients by

stating:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: 

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

 (2) the representation is not prohibited by law;

 

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and 

(4) each affected client gives informed consent, confirmed in writing.

Rule 1.7 defines conflict of interest and prohibits representing two clients whose interests

are materially adverse to one another. Even with the existence of a conflict as defined by

the rules, the conflict can, in certain situations be waived by the client if informed

consent is given and confirmed in writing.

Rule 1.8 of the Oklahoma Rules of Professional Conduct outline specific rules related to

conflicts of interest. A full copy of Rule 1.8 is attached as a reference should one

encounter a situation for the application of these guidelines. Generally, Rule 1.8

discusses those instances where the lawyer is engaged in business transactions or acquires

ownership, possessory security or other financial interests adverse to a client.

Finally Rule 1.9 of the Oklahoma Rules of Professional Conduct identifies conflict of

interest with former clients. Rule 1.9 states:

(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.

(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

(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.

 (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 been generally known; or 

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Both Rule 1.7 and 1.9 mirror the exception to the conflict as long as it is disclosed and

consent is given in writing.

As you might expect, determining if you have a conflict is often the most difficult step.

Gathering sufficient facts is a key component in the process. All of us should utilize

conflict-checking systems appropriate with the size of our practice. For example,

practice management software can be utilized to check for conflicts, particularly in large

firms. Despite the mechanism chosen to address conflicts of interest, communication is

the key to addressing potential conflicts and preventing unnecessary problems. Even

more important is the implementation of a workable system for each of the lawyers to

provide input on new case evaluations.

B. Setting and Collecting Attorney Fees

Communication and establishing expectations is important in any successful relationship.

At the inception of the attorney-client relationship, communicating about the fee

agreement is essential. Early and meaningful discussions about the contingency fee

foster a sense of trust and establish expectations between the lawyer and client. A clear

understanding of the fee between the lawyer and client is also mandatory under our rules

of professional conduct. There are many ways to present the proposed fee agreement to

prospective clients; but there is only one way to formalize the fee agreement with your

prospective client.

One example involves simply discussing the concept of the contingency fee agreement

with the client early in the relationship. A general discussion with a potential client that

identifies the percentage of the attorney fee to the over-all judgment or verdict along with

the expectations of expenses can build a solid foundation of trust. Soon thereafter, a

written fee agreement can be sent to the client via mail or email. The potential client can

review the proposed agreement in a surrounding comfortable to them without feeling

pressured.

Rule 1.5 of the Oklahoma Rules of Professional Conduct describe the specific

requirements for a fee agreement between a lawyer and their client:

(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

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

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

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(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 expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the

service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in 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. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of determination.

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

(1) 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

(2) a contingent fee for representing a defendant in a criminal case.

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

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

C. Maintaining Client Confidentiality

BEV

D.