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Attorney E-Newsletter

July 2005

RPC 1.8: Current Clients: Specific Rules

RPC 1.8 was formerly titled "Prohibited Transactions;" it has been retitled "Concurrent Clients: Specific Rules." It governs various responsibilities to current clients, beyond the basic duty to avoid conflicts of interest created by RPC 1.7 (profiled in the April E-Newsletter). Many of the changes made to this Rule bring the Pennsylvania rule closer to the language of the ABA Model Rule 1.8. There are quite a few modifications to the language of the rule to bring it into harmony with language generally used in the Rules of Professional Conduct; this brief note will focus on substantive changes in the requirements imposed by the rules.

Business Transactions: RPC 1.8(a)(1), generally involving business transactions with clients, is amended to include a provision that in addition to the existing requirements of written disclosure and consent, the transaction must be fair and reasonable. The terms of the required written disclosure and consent are defined in greater detail.

Gifts to Lawyer: RPC 1.8(c), regarding solicitation of gifts and preparing instruments giving the lawyer an interest, is significantly amended. Lawyers are now prohibited from soliciting a substantial gift (including a testamentary gift) from clients, while the previous rule only applied to preparation of instruments. The previous language that stated the gift was permissible if the lawyer was related to the donee "within the third degree of relationship" is discarded, and "related" is now defined as "spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close familial relationship."

Limiting Liability: RPC 1.8(h), which sets standards for limiting liability to clients, drops a requirement that the limitation be "permitted by law," and extends the coverage of the section to "potential claims." The client must be given reasonable opportunity to seek independent legal advice as well as written advice to do so.

Disclosure of Relationships: Former RPC 1.8(i), which required a lawyer related to another lawyer as parent, child, sibling, or spouse to disclose the relationship and obtain the client's consent before engaging in representation adverse to a party represented by the related lawyer, was deleted from the current rule.

Sex with Clients: New RPC 1.8(j) establishes a strict prohibition on a lawyer engaging in sexual relations with a client, except when that relationship preceded the representation.

Imputed Disqualification: RPC 1.8(k) provides that when a lawyer is disqualified from a representation under any subsection of this Rule (except RPC 1.8(j) regarding sexual relations with a client), the disqualification extends to all lawyers in the lawyer's firm.

Changes for Criminal Defense Counsel

The Supreme Court has taken two actions, which can significantly affect the responsibilities of criminal defense counsel.

On April 28, 2005, the Supreme Court adopted significant amendments to Pa. Rule of Criminal Procedure 120, regarding appearances and withdrawals of attorneys. Perhaps the most significant change is the addition of Subsection 120(A)(4), which states: "An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until granted leave to withdraw by the court . . ." This provision could require criminal defense counsel to review their fee arrangements, particularly those attorneys who have traditionally established fee structures based on the assumption that fees paid by the client would only cover services through a particular level of the matter, such as trial, and have reserved the right to require a new fee agreement and payment before undertaking further measures such as appeal.

The revisions also include new language in Subsection (B), providing specific guidance for the filing of motions to withdraw.

Also accentuating the fact that the Supreme Court expects vigorous follow through on criminal cases by defense counsel, the Prothonotary of the Supreme Court on June 2, 2005, issued a Notice to Public Defender offices and appointed counsel throughout the Commonwealth, stating:

The Supreme Court is receiving petitions from criminal defendants alleging that appointed counsel failed to pursue available avenues of appellate review. Effective immediately, in reviewing such petitions, the Court will advise the attorney of the allegation and request a response. If the Court concludes that counsel abandoned the client in violation of the rules and case law, the matter will automatically be referred to the Disciplinary Board of the Supreme Court for consideration. See Pa.R.Crim.P. 122(C)(3) and 904(E) and Comments thereto.

Tip of the Month

Remember that Rule 1.5(b) requires that a lawyer give a client a written statement of the basis on which fees are calculated, at the beginning of the representation or within a reasonable time afterward. If the matter is important enough to collect a fee, it is important enough to give the client a written statement of the basis of the fee.