Client Communications: Best Practices and Ethical ...wsba.vo.llnwd.net/v1/CLE...

Client Communications:

Best Practices and Ethical

ConsiderationsApproved for 1.5 Max Total Credits for Washington Attorneys, 0.75 General and 0.75 Ethics credits

Presented on April 28, 2015 • Seattle, WA

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LL150428WEB • Client Communications: Best Practices and Ethical Considerations • i

Faculty

A Special Thank You to Our Faculty!

Those who have planned and will present at this WSBA CLE seminar are volunteers. Their gener-

ous contributions of time, talent, and energy have made this program possible. We appreciate their

work and their service to the legal profession.

Program Faculty

Jeanne Marie Clavere — Seattle, WA

Robin Haynes — Spokane, WA

Copyright © 2015 • Washington State Bar Association • All Rights Reserved

The materials and forms in this manual are published by the Washington State Bar Association for

the use of its program registrants. Neither the Washington State Bar Association nor the contributors

make either express or implied warranties in regard to the use of the materials and/or forms. Each at-

torney must depend upon his or her own knowledge of the law and expertise in the use or modifi cation

of these materials. The views and conclusions expressed herein are those of the authors and editors

and are not necessarily those of the Washington State Bar Association or any division or committee

thereof. Any websites represented by screenshots, logos or ads reproduced in the materials and forms

are the copyrighted material of the website owners and are included for illustrative and educational

purposes only.

LL150428WEB • Client Communications: Best Practices and Ethical Considerations• ii

Summary of ContentsProgram Schedule ................................................................................................................................................................... iii

1 Rules of Professional Conduct ....................................................................... 1-1 Jeanne Marie Clavere

2 Client Communications Basics ...................................................................... 2-1

Robin Haynes

LL150428WEB • Client Communications: Best Practices and Ethical Considerations • iii

Program Schedule

Client Communications:

Best Practices and Ethical Considerations

Tuesday, April 28, 2015

11:30 a.m. Webcast Check-in

12:00 p.m. Welcome and Introductions

12:03 p.m. Rules of Professional Conduct

Jeanne Marie Clavere – WSBA, Seattle

12:25 p.m. Client Communications Basics

Robin Haynes – Witherspoon Kelley, Spokane

12:30 p.m. Forms of Communication and Technology


12:40 p.m. Confl icts, Settlements and Fee Agreements


12:55 p.m. Best Practices and Ethical Considerations:

Hypothetical Scenarios discussion



1:10 p.m. Client Communication Best Practices


1:15 p.m. Q & A



1:25 p.m. Conclusion

1:30 p.m. Adjourn

LL150428WEB • Client Communications: Best Practices and Ethical Considerations• iv

Under MCLE Rules, we report hour house of course attendance. Our report is based on you confi rming your attendance with our

CLE representative as you arrive, and the receipt of the form below from anyone who chooses to attend only part of the seminar.

We ask that you complete this form and turn-in to our representative if you leave before the end of the program.

Thank you, WSBA-CLE

The purpose of this form is to notify the sponsor listed below if you have earned less than the available credits while

attending this CLE course. You can fax your completed for to WSBA-CLE: (206) 727-8324.

Under Washington State MCLE Rules (APR 11.6(a)(1)), sponsors must report attendance at each CLE course. The sponsor’s report

is based on confi rming your attendance as you arrive and the receipt of this form as you leave if you choose to attend only part of the

CLE course.

• If this form is not returned, the sponsor will presume that you have attended the entire CLE course and earned full credit.

• If you did not attend the full CLE course, this form must be returned to the sponsor.

How to calculate general/ethics credits:

One credit is equivalent to one hour (60 minutes) of instruction time at an approved CLE course. Credits can be obtained in

quarter-hour increments: 15 minutes of instruction equal .25 credits. No credit is given for breaks. Contact the sponsor if

you have questions about which sections of the program, if any, have been approved for ethics credit.

For information, see the following website or contact the WSBA Service Center.

http://www.wsba.org/Licensing-and-Lawyer-Conduct/MCLE/Members/Member-Online-MCLE-FAQs - [email protected]

Seminar Sponsor: WSBA-CLE

Seminar Name: Client Communications: Best Practices and Ethical Considerations (LL150428WEB)

Seminar Date: April 28, 2015

Approved Credits: 1.5 CLE Credits for Washington Attorneys (0.75 General and 0.75 Ethics)

Hours of Attendance:

Credits Earned: general ethics

Printed Name: Bar #:

I hereby certify that I have earned the number of general/ethics credits inserted above on the Credits Earned line.

Signature: Date:

TIME OF ARRIVAL TIME OF DEPARTURE

CHAPTER ONE

RULES OF PROFESSIONAL CONDUCT

April 2015

Jeanne Marie Clavere WSBA, Seattle

[email protected]

Ethics Line: 206-727-8284 or 800-945-WSBA, ext. 8284

JEANNE MARIE CLAVERE is a 1987 graduate of the University of the Puget Sound School

of Law (now Seattle University School of Law). Prior to earning her law degree she received a

Master of Business Administration from DePaul University in Chicago. In February, 2010 she

joined the staff of the Washington State Bar Association as Professional Responsibility Counsel,

Jeanne Marie began her solo practice in 1991, focusing on estate planning, elder law (including

complex guardianships, trusts, and guardian ad litem appointments), and contract based criminal

prosecution. As Professional Responsibility Counsel, Jeanne Marie currently works as an advisor

to members of the bar on the Rules of Professional Conduct as they apply to WSBA Advisory

Ethics Opinions, the Rules for Enforcement of Lawyer Conduct, and the ABA Standards for

Imposing Lawyer Sanctions. Jeanne Marie is the primary responder on the WSBA Ethics Line

and wants every attendee to commit the number to memory to call her first, not after they run

into an ethical dilemma. While in private practice, Jeanne Marie appeared before a wide range of

courts and tribunals, ranging from Ex Parte hearings to trails on guardianship and criminal

issues, and served for many years as a Settlement, Litigation, Adoption, Family Law, Incapacity

and Probate Guardian ad Litem in King and Snohomish Counties. Jeanne Marie is current chair

of the state of Washington Women Lawyers, past chair of the Washington State Bar Association

Elder Law Section and has spoken at CLEs on a wide variety of topics. She is a member of the

American Bar Association and the ABA's Center for Professional Responsibility.

Opinions expressed herein are the author’s and do not necessarily represent the official or unofficial position of the Washington State Bar Association or the WSBA Office of General Counsel. Members seeking guidance or information about ethics may contact WSBA

Professional Responsibility Counsel on the Ethics Line at 206-727-8284 / 800-945-WSBA ext.

8284.

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1-88

CHAPTER TWO

CLIENT COMMUNICATIONS BASICS

April 2015

Robin Haynes Witherspoon Kelley, Spokane

Email: [email protected]

Phone: (509) 624-5265

ROBIN L. HAYNES is a Principal in the Spokane offices of the firm of Witherspoon Kelley,

where her practice focuses on complex commercial litigation, primarily on the defense side. Her

work includes employment, class actions, and receiverships. She also advises start up entities

throughout the state. Prior to joining Witherspoon Kelley in 2013, she was the first woman

partner at Reed & Giesa, P.S. where she practiced complex commercial litigation from the

plaintiff's side. She is a former EAGLE member of the WSAJ and the current Governor at Large

(New and Young Lawyers) for the Washington State Bar Association Board of Governors. Robin

is a triple Zag, having attended Gonzaga for undergrad, grad school, and law school.

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SPOKANE | COEUR D'ALENE

ROBIN L. HAYNES **ADMITTED TO PRACTICE IN

[email protected] WASHINGTON AND IDAHO

DATE

CLIENT NAMECLIENT ADDRESSCLIENT ADDRESS

Re: Conflict of Interest Waiver

Dear CLIENT,

I write to confirm our prior conversations and to obtain your written consent to Witherspoon Kelley representing the interests of COMPANY CLIENT in connection with the preparation and review of a [TYPE OF] Agreement (the "Agreement"), pursuant to which INDIVIDUAL CLIENT will be awarded membership units of COMPANY in connection with his employment. As I mentioned, the Washington Rules of Professional Conduct ("RPC") require us to consult with each of you and obtain your written consent to our representation of COMPANY in this situation.

Rule 1.7 of the RPCs provides that a lawyer shall not represent a client if the representation of one client will be directly adverse to another client, unless:

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

(2) Each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosures).

The potential conflict in this situation arises because of Witherspoon Kelley's past and current representation of INDIVIDUAL CLIENT, and our past and current representation of COMPANY CLIENT, and contemplated representation of COMPANY CLIENT in connection with the Agreement. However, at this point, you have negotiated the essential terms of the Agreement and COMPANY CLIENT has asked Witherspoon Kelley to review the proposed Agreement on its behalf. Accordingly, our assistance will be primarily in documentation and in objective advice regarding the legal effect of the proposed Agreement. We therefore believe our representation of COMPANY CLIENT in this matter will not affect our ability to diligently represent COMPANY CLIENT on this matter or INDIVIDUAL CLIENT on the matters we are currently handling for him. If a situation is presented where the parties become adverse and the

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mailto:[email protected]

COMPANY CLIENTINDIVIDUAL CLIENTDATEPage 2--------------------------------------------------

matter or issue cannot be resolved, Witherspoon Kelley would need to withdraw and could not represent either of the parties.

To ensure that your consent to our representation of COMPANY CLIENT is an informed one, we have urged you to discuss with counsel of your choice the advantages and risks involved in doing so in connection with the Agreement. We have not acted as counsel to COMPANY CLIENT in making this decision.

Taking into account all of the foregoing, you hereby consent to Witherspoon Kelley acting on behalf of COMPANY CLIENT in connection with the preparation of the Agreement. You also consent to Witherspoon Kelley continuing to act, after the Agreement is executed, as it may deem appropriate, with respect to all unrelated matters involving INDIVIDUAL CLIENT.

You represent to Witherspoon Kelley that you are sophisticated in the matters involved and that you have had the opportunity to consult with your own separate legal counsel and understand the risks involved in proceeding in the fashion outlined in this letter. If this letter meets with your approval, and you desire to waive any conflict of interest and allow Witherspoon Kelley to represent COMPANY CLIENT with respect to the Agreement, please execute this letter and return the same to us as soon as possible.

Best regards,

WITHERSPOON • KELLEY

ROBIN L. HAYNES

RLH:mf

ACKNOWLEDGED AND CONSENTED TO BY:

COMPANY CLIENT

By:COMPANY CLIENT REP INDIVIDUAL CLIENT

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CONTINGENT FEE AGREEMENT

I hereby retain the law firm of WITHERSPOON · KELLEY, 422 W. Riverside Avenue, 1100 U.S. Bank Building, Spokane, Washington 99201, telephone (509) 624-5265, to represent me in the following matter against OPPOSING PARTY as a result of a personal injury incident and such other matters for which the client requests and the attorneys agree to provide their representation.

I understand that I am entering into a Contingent Fee Agreement. If the case is settled or otherwise concluded any time before 30 days before the first scheduled trial or arbitration date, the contingent fee will be 30% (thirty percent) of anything of value recovered or realized. I am to receive 70% (seventy percent) from which the reasonable and necessary costs incurred will be withheld, including but not limited to any medical expenses not provided for specifically in the settlement package. Of the 30% (thirty percent) attorney fee recovery, WITHERSPOON ·KELLEY and OTHER LAW FIRM, will share pro rata.

If the case is settled or otherwise concluded after 30 days before the first trial or arbitration date and through the entry of judgment after arbitration and unless an appeal is earlier pursued by any party, the contingent fees will be 1/3 (one-third) of anything of value recovered or realized. I am to receive 2/3 (two-thirds) from which the reasonable and necessary costs incurred will be withheld, including but not limited to any medical expenses not provided for specifically in the settlement package. Of the 1/3 (one-third) attorney fee recovery, WITHERSPOON · KELLEY and OTHER LAW FIRM, will share pro rata.

In the event the case is settled or otherwise concluded after an appeal is filed by any party either before or after a judgment is entered by the trial court (i.e., a pretrial or pre-arbitration appeal of a venue ruling, a motion in limine ruling, a discovery ruling, or any other issue, or a post-trial or post-arbitration appeal) and/or a retrial of the case, the attorney fees shall be 1/3(one-third) of anything of value recovered or realized. I am to receive 2/3(two-thirds) from which the reasonable and necessary costs incurred will be withheld, including but not limited to any medical expenses not provided for specifically in the settlement package. Of the 1/3 (one-third) attorney fee recovery, WITHERSPOON · KELLEY and OTHER LAW FIRM, will share pro rata.

Since this representation is undertaken on a contingent fee basis, the Attorneys shall be entitled to all court-awarded attorneys' fees in addition to the contingent fee. If the recovery includes a payment of money or value over time, any contingent attorneys' fees shall be calculated upon the cost of such settlement to the defendant and shall be paid from 100% of the first money or value received until paid in full.

I understand that I am personally responsible for all reasonable and necessary costs incurred by said law firm in handling this matter. These costs include, but are not limited to, depositions, consultations with experts, travel expenses, witness fees, filing fees, medical record fees, and service of process fees. I further understand that some or all of the costs incurred may be paid by said law firm and that any funds advanced by said firm shall bear interest at the rate of

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12% per annum. Law firm is authorized to withhold said costs incurred and/or paid plus interest from my share of any settlement or verdict.

I further understand that any attorney fees and/or costs collected from the adverse party will be applied to the balance owed WITHERSPOON · KELLEY, by me. In the event attorney fees collected from the adverse party exceed the contingent fee amount set forth above I understand attorneys shall retain said fees and I shall not owe attorneys any additional fees, however I also understand that I will still be responsible for repayment to attorneys of the costs incurred as set forth above.

No Promises: Client acknowledges that Attorneys have made no promises or guarantees regarding the outcome of this case. Client understands and agrees that should a trial be required, Attorneys have sole discretion to determine which member or members of the law firm will act as trial counsel.

Withdrawal or Discharge of Attorneys: Both Client and Attorneys shall have a mutual right to end the attorney and client relationship at any time, for any reason, on reasonable notice to the other. Client agrees that Attorneys shall be entitled to withdraw at any time on reasonable notice in Attorneys' sole discretion. If the relationship is ended by either party, Attorneys shall be entitled to a fee as well as reimbursement of costs. If Attorneys' legal services for Client hasbeen substantially performed at the time of termination, attorney shall be entitled to the contingent fee set out in this agreement. Otherwise, the Attorneys shall be entitled to a reasonable fee for services done. It is agreed that no settlement shall be made by Client in such a way as to exclude Attorneys from their contingent fee.

I HAVE READ THE ABOVE, UNDERSTAND THE AGREEMENT AND HEREBY AGREE TO THE TERMS. THERE ARE NO OTHER AGREEMENTS BETWEEN THE PARTIES.

I UNDERSTAND THAT, PURSUANT TO WASHINGTON STATE LAW, I HAVE THE RIGHT TO PETITION THE COURT TO DETERMINE THE REASONABLENESS OF FEES UNDER THIS CONTRACT WITHIN FORTY-FIVE (45) DAYS OF RECEIPT OF A FINAL BILL OR ACCOUNTING.

I UNDERSTAND THAT NO SETTLEMENT WILL BE MADE WITHOUT MY KNOWLEDGE AND CONSENT.

DATED this ______ day of ____________________, 2013.

____________________________________CLIENT

____________________________________ROBIN L. HAYNES,WITHERSPOON · KELLEY

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WITHERSPOON · KELLEY

STANDARD TERMS OF ENGAGEMENT FOR LEGAL SERVICES

This statement sets forth the standard terms of our engagement as your attorneys. Unless modified in writing by mutual agreement, these terms are part of our agreement with you. Therefore, we ask that you review this statement carefully and contact us promptly if you have any questions. We suggest you retain this statement in your file.

1. Scope of Work. You have engaged our firm to undertake legal representation ofyour interests with respect to the representation of CLIENT for the purpose of ISSUE. This engagement agreement will govern any new matters assigned to Witherspoon Kelley, unless otherwise agreed. Our legal representation will involve use of our knowledge, skill, training, expertise and preparation reasonably necessary for the representation. We will strive to obtain the result you desire. We emphasize that any expressions concerning the outcome of your legal matters are expressions of our best professional judgment and not guarantees. Such opinions are limited by our knowledge of the facts and are based upon the state of the law at the time they are expressed.

We will abide by your decisions concerning the objectives of your representation and will consult with you as to the means by which they are pursued. We will keep you timely informed about the status of any matter we are handling and promptly furnish you with information to enable your decision making.

2. Confidentiality. We will not reveal your confidences or secrets relating to ourrepresentation unless we have your consent after consultation or such disclosures are impliedly authorized in order to carry out the representation.

3. Who Will Provide the Legal Services. Customarily, each client ofWitherspoon · Kelley is served by a principal attorney contact, which will be Robin L. Haynes. Your work or parts of it may be performed by other attorneys or non-lawyer personnel in the firm. Such delegation may be for the purpose of involving others with special expertise in a given area or in an effort to accomplish tasks on the most cost-effective, efficient and timely basis. These individuals will be assigned tasks under my supervision. We employ interns who are law students or recent law graduates. They perform a number of research and organizational functions.

4. How Fees Will Be Set. In determining the amount to be charged for the legalservices we provide to you, we will consider:

a. The time and effort required, the novelty and complexity of the issuespresented, and the skill required to perform the legal services promptly;

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b. The fees customarily charged in the community for similar services andthe value of the services to you;

c. The amount of money or value of property involved and the resultsobtained;

d. The time constraints imposed by you as our client, and othercircumstances such as an emergency closing, the need for injunctive relief from court, or substantial disruption of other office business;

e. The nature and longevity of our professional relationship with you;

f. The experience, reputation and expertise of the attorneys performing theservices; and

g. The extent to which office procedures and systems have produced a highquality product efficiently.

The hourly rates of our attorneys and legal assistants have an important bearing on the fees we charge. These rates are reviewed annually to reflect current levels of legal experience, changes in overhead costs, and other factors. Many of our attorneys have developed special expertise in a particular area of law and are able to deliver services in their specialty area with greater efficiency. While the firm's billing rates per hour may change from time to time, myservices are currently billed at the hourly rate of $$MONEY. The expertise of other attorneys in the firm may also be occasionally required. Presently, the services for associates and partners are based on hourly rates between $150.00 and $330.00. Interns/law clerks will be billed at the rate of $75.00-$100.00 per hour. Paralegals and legal assistants, when used, are billed at $40.00-$110.00 per hour.

We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. Whenever possible, we will furnish such an estimate based upon our professional judgment, but always with a clear understanding that it is not a maximum or fixed fee quotation. The ultimate cost frequently is more or less than the amount estimated.

5. Out-of-Pocket Expenses. We typically incur and pay on behalf of our clients avariety of out-of-pocket costs arising in connection with legal services. These include charges made by government agencies and service vendors, as well as clerical charges. Whenever such costs are incurred, we will carefully itemize and bill them. Typical of such costs are long-distance telephone charges; messenger, courier, and express delivery charges; telecopy and telex charges; printing and reproduction costs; filing fees; deposition and transcript costs; witness fees; travel expenses; charges made by outside experts and consultants, including accountants, appraisers, and other legal counsel (unless arrangements for direct billing have been made); charges for automated document production (word processing); and computer-based legal research that is billed on a unit basis depending on the time of use. We incur outside costs as

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agents for our clients and incur internal expenses on behalf of our clients, who agree that these costs will always be paid on a regular basis.

We will not retain outside experts and consultants or other legal counsel without your prior approval. In the event you authorize employment of outside experts and consultants, we shall direct their services and receive their billing statements, which shall be promptly transmitted to you for payment.

6. Trust Deposits. Any deposits that we receive from you will be placed in anoninterest-bearing trust account on your behalf. Deposits that are nominal in amount or are on deposit for only a short period of time will be placed by us in our unsegregated, noninterest-bearing trust account.

Deposits that are received to cover specific items will be disbursed as appropriate and you will be notified from time to time of the amounts applied or withdrawn. Any amount remaining after disbursement will be returned to you.

7. Termination. You may terminate our representation at any time, with or withoutcause, by notifying us. If such termination occurs, your papers and property will be returned to you promptly upon receipt of payment for outstanding fees and costs. Our own files pertaining to the case will be retained. Your termination of our services will not affect your responsibility for payment of legal services rendered and out-of-pocket costs incurred before termination and in connection with an orderly transition of the matter.

We are subject to the Washington Code of Professional Responsibility, which lists several types of conduct or circumstances that require or allow us to withdraw from representing a client: nonpayment of fees or costs; misrepresentation or failure to disclose material facts; action contrary to our advice; and conflict of interest with another client. We try to identify in advance and discuss with our client any situation that may lead to our withdrawal, and if withdrawal ever becomes necessary, we immediately give the client written notice of our withdrawal.

8. Billing Arrangements and Terms of Payment. We will bill you on a monthlybasis for both fees and disbursements. You agree to make payment within thirty (30) days of receiving our detailed statement. Unpaid fees and disbursements accrue interest at the rate (noncompounded) of one percent (1.00%) per month from the beginning of the month in which the unpaid amounts become overdue.

We will give you prompt notice if your account becomes delinquent, and you agree to bring the account or the retainer deposit current. If the delinquency continues and you do not arrange satisfactory payment terms, we will withdraw from the representation and pursue collection of your account. You agree to pay the costs of collecting the debt, including court costs, filing fees, and reasonable attorneys' fees.

9. Retainer. No retainer is requested at this time.

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10. Your Right to Arbitrate. If you disagree with the amount of our fee, please takeup the question with your principal attorney contact or with the firm's office administrator. Typically, such disagreements are resolved to the satisfaction of both sides with little inconvenience or formality. In the event of a fee dispute that is not readily resolved, you have the right to request arbitration under supervision of the Washington State Bar Association, and we agree to participate fully in that process.

11. Files. The firm creates and maintains files incident to our representation of clientsand will do so in connection of our representation of you. These files remain the property of Witherspoon · Kelley and will be maintained in storage for a period of seven (7) years after conclusion of the matter to which they relate, at which time they will be destroyed.

DATED this ____ day of April, 2015.

______________________________Robin L. Haynes, AttorneyWitherspoon Kelley

CLIENT, LLC

_____________________________CLIENT, Member

PERSONAL GUARANTY

I, CLIENT, individually, hereby guaranty performance of all of CLIENT, LLC'S obligations under this agreement. I understand and agree that Witherspoon Kelley will be acting solely as attorneys for CLIENT, LLC'S and not as my personal attorneys.

______________________________CLIENT

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