ch 3 preliminary considerations and procedures

Determining the Existence of a Cause of Action

- Although formal litigation begins when a lawsuit (a complaint) is filed in court, a litigator's responsibilities begin much earlier. - One of the first considerations facing an attorney is whether a potential client has a legitimate case. Before a party has a valid basis for a lawsuit, that party must have some injury or damage caused in such a way that the law recognizes the right to sue. In other words, a legal right to recover damages must exist. This legally recognized right to relief is known as a cause of action. - Whether a cause of action exists is a legal question and must be made by an attorney. However, as a litigation paralegal, you might assist in researching this issue. Your research requires that you examine both the law and the facts in the case. - Determining the Existence of a Cause of Action ✓ Identify the general area of substantive law. ✓ Identify the more specific area of substantive law. ✓ Identify the legal elements required for a specific cause of action. ✓ Review the facts of your case. ✓ Determine if each legal element is satisfied by facts in your case. - Identifying the elements of a cause of action is important in the litigation process for various reasons. Probably most important is that each of the elements must be proven at trial for the plaintiff to prevail. In other words, to win the case, the attorney must present evidence that supports each element of the cause of action. Also, in some state jurisdictions the initial pleading must allege facts that support each element of the cause of action. - Knowing the elements of the cause of action in a particular case is essential to any litigation paralegal assisting the attorney in pretrial preparation. Understanding what the attorney must prove at trial enables you to gather appropriate evidence and conduct relevant discovery. It also equips you to prepare pleadings that comply with legal requirements and to review opposing pleadings for legal deficiencies. - Identifying the elements of a cause of action in a particular case may take some research. The ultimate source for this information is generally statutory or case law (or both.) However, many secondary source books are of great help. Practice books and form books, which often contain explanations and legal analysis of the forms, are especially helpful. A popular resource is Causes of Action 2d published by Thomson Reuters - Elements of Different Causes of Action Fraud The defendant misrepresented, concealed, or failed to disclose a fact. The defendant knew of the falsity of the statement. The defendant intended to defraud. The plaintiff justifiably relied on the statement. Damages resulted. Breach of Contract A contract exists. Plaintiff performed or was excused from performing his duties under the contract. Defendant breached or failed to perform his duties. Damages resulted. Strict Liability—Products Liability Defendant manufactured or distributed a product. The product was defective. The product was used in a foreseeable manner. The defective product caused an injury. Damages resulted.

Conflict of Interest

- A law firm generally cannot accept a case if a conflict of interest exists. - Conflicts of interest can arise in a number of different situations: A conflict might exist where the opposing party in the new case was a prior client of the firm or of any attorney in the law firm. A conflict might exist if a paralegal worked on a prior case in which the prior client is now an opposing party. A conflict might exist if any of the attorneys or paralegals have personal relationships with attorneys or paralegals representing the opposing party. - A conflict of interest usually arises when a firm is asked to sue a party whom it currently represents or previously represented in another case. Although prior representation does not always result in a conflict, the potential for a conflict exists and must be closely examined before accepting the case. A conflict is determined by whom the firm represents, rather than by whom any particular attorney in the firm represents. - Before accepting a case, a firm must determine that no conflict exists. The larger the law firm, the more likely it is that some conflict may exist. As a litigation paralegal, you may be responsible for checking for conflicts. All law firms need to keep a centralized list of all clients. Without such a list, each attorney in the firm would have to be questioned about a possible conflict. This is not only time consuming but also unreliable. Most law firms, especially larger ones, now have centralized computerized lists of all clients. This makes the conflict check simple and more accurate. - Conflict problems also can arise when an attorney or a paralegal has changed jobs, and the prior law firm represented a party who is now a potential defendant. The prior relationship might result in a conflict of interest in the current litigation. Should you find yourself in such a situation, you should immediately inform the attorney handling the case. In these cases, a firm can sometimes continue to handle the case as long as they do not allow the attorney or paralegal with the conflict to have any involvement in the case. This is sometimes referred to as setting up an ethical wall. - Not all conflicts of interest revolve around the clients or parties in a potential case. Some conflicts are created by relationships between attorneys or paralegals in opposing law firms. - Even if a conflict does exist, the firm can still handle the case if the prior client agrees in writing to waive the problem and if the conflict does not interfere with the ability of the attorney to represent the client. In the event that a conflict is not waived, the firm cannot accept employment in the new case - Ethical Considerations: The Decision to Accept a Case ✓ Does the law firm have the competency and time to handle the case? ✓ Does the case have legal merit? ✓ Is there any conflict of interest with the parties? ✓ Is there any conflict of interest between opposing lawyers or paralegals?

Ethical Considerations in Accepting a Case

- All attorneys are subject to a certain code of conduct. Ethical rules for attorneys are found in state law, although many states pattern their rules after the American Bar Association Model Rules of Professional Conduct. Ethical rules generally apply to attorneys rather than to paralegals, but you must still know and follow these rules. If a paralegal works under the direction or supervision of an attorney, and the paralegal violates any of the rules, the attorney is often held responsible and may face disciplinary action by the state bar. Ethical considerations control the entire litigation process, beginning with the decision to accept a case. Several ethical considerations influence the attorney's decision to accept or reject a case. Other ethical standards govern the attorney's and the paralegal's conduct during the course of litigation.

Special Ethical Concerns for Paralegals

- Although paralegals should be careful to follow all ethical standards imposed on attorneys, some concerns particularly affect legal assistants. Both the National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations (NFPA) have adopted ethical standards or guidelines for the paralegal profession. Included in those guidelines are the following: Paralegals or legal assistants should disclose their status as a legal assistant at the beginning of any professional relationship. Paralegals should protect or preserve all confidential information obtained by them. Paralegals should not engage in any activity involving the unauthorized practice of law, including giving legal advice. Paralegals should not establish the attorney-client relationship or set fees. Paralegals should be honest and accurate in all timekeeping and billing records. - All of these ethical standards are important for the paralegal, but one that often poses many day-to-day questions involves the unauthorized practice of law. In part this is because the practice of law involves such a variety of activities. As a general rule, however, the unauthorized practice of law prohibits paralegals from: making an appearance in a court proceeding on behalf of a client, giving legal advice to a client (advice that calls for a legal opinion or legal judgment), and signing pleadings or other documents filed in court on behalf of a client. - On the other hand, as a general rule, a paralegal can do the following without engaging in the unauthorized practice of law: file documents in court or communicate with court staff regarding a case, give factual information to a client, including general descriptions of legal proceedings, and sign correspondence to clients, courts, or others, as long as the paralegal status is made clear and as long as the correspondence does not include any legal advice

Property of Client—Trust Accounts

- An attorney cannot commingle his own assets or property with property belonging to a client. To handle this kind of a situation, attorneys have special bank accounts, known as trust account (trust deposit), into which they deposit all money belonging to their clients. It is allowable to have one trust account for many clients, as long as accurate records are kept. - In litigation, trust accounts are used for two main purposes—advances by the client and settlement or satisfaction of judgments. First, if the client gives the attorney money that is specifically designated for costs, then the money should be deposited in a trust account until the cost is actually incurred. The attorney should not deposit the funds into his general account. Likewise, if the client gives the attorney a fee advance, that should also be deposited into the trust account until the fee is actually earned. Second, when a case is settled, the attorney must exercise care regarding any money he receives. A settlement check is primarily the property of the client. However, the attorney wants to be certain that he receives his fee and costs. In fact, the attorney may have a lien against the settlement if so provided in the retainer agreement. Because of the client's interest in the check, however, the attorney cannot deposit it into his personal account. The attorney must deposit the check into the trust account. After he makes certain that the settlement check has cleared, he can make proper disbursements from the trust account, paying the client his share and reimbursing himself for his costs and fee. If the trust account contains money for more than one client, the attorney should always make sure that the check has cleared before making any disbursements. Failure to do so could result in the property of one client being used for the benefit of another. - The importance of proper control and management of trust accounts cannot be overemphasized. Intentional misuse of clients' funds is theft and is punishable criminally. Negligent misuse of client funds results in disciplinary proceedings against the erring attorney. This is one area where bar associations are especially strict.

Honesty

- An attorney must never knowingly make a false representation about a case to a court or other tribunal. Although paralegals do not usually appear in court, you may frequently assist in the preparation of documents that are filed in court. You must be careful that factual and legal information is true and accurate. - In addition to honesty with the court, attorneys and paralegals should always be honest in their dealings with other attorneys and other paralegals. Aside from basic ethical considerations, a firm's reputation will be destroyed if its attorneys and paralegals cannot be trusted by other firms.

Ethical Considerations and Technology

- As with all businesses, the use of technology has affected the practice of law. Although it offers many advantages, technology creates many ethical concerns for legal professionals. A major area of concern is confidentiality.

Attorney Fees and Ethics

- Attorney fees present several ethical concerns. Only the attorney is allowed to set fees. Professional guidelines prohibit a paralegal from being involved in establishing fees in a case. However, you should be aware of the fee structure in case a question arises about a billing entry during the course of litigation. The fee should not be unreasonable or unconscionable. The fee arrangement, including any additional expenses, should be clearly explained to the client and it should be in writing. Some state laws require a written retainer agreement. Another important ethical rule prohibits sharing of fees with nonattorneys. - A fee in a litigation case can be set in a number of different ways. At the outset of the case, the attorney could simply set a flat fee, or fixed sum, to handle the case. For example, an attorney and client might agree that the attorney will handle the client's contract dispute for . Because the amount of time needed to properly litigate a case is hard to predict, it is rare to see a fee set in this manner. However, if the fee is set this way, the attorney must make a reasonable, good-faith effort to make the fee commensurate with the expected work in the case. - More commonly, the attorney and client will agree to an hourly billing. In an hourly billing, the client is charged a fixed amount for each hour the law firm spends on the case. The hourly rate cannot be excessive, but there are substantial differences in fees charged by lawyers, often depending on the attorney's experience. It is also common for firms to bill for paralegal time - An alternative way of setting a fee in litigation is the contingent fee, a common arrangement in personal injury cases. In the contingent fee agreement, the attorney takes a percentage of whatever recovery is obtained. If no recovery is made, the attorney receives no fee. In this type of fee arrangement, there are times when an attorney receives a large fee for little time spent. Such a result, however, does not make the arrangement unreasonable. Contingent fees have been allowed on the theory that they permit people to pursue cases they could not afford otherwise. - A fee is the compensation that an attorney receives for his time and efforts in a case. However, it is not the only expense incurred during the litigation process. Courts require filing fees to process documents. Investigators and experts are often needed to help prove the case, and process servers have to be paid to serve papers. Out-of-pocket expenses such as these are known as costs. Most attorneys expect that the client will pay the costs of suit in addition to the fee that is charged. Even if the case is handled on a contingent fee basis, the attorney may request that the client put up funds to cover expected costs. Sometimes the attorney will advance or pay for these costs himself, expecting reimbursement (in addition to his fee) when the case is settled. It is important for the attorney to make this clear to the client. - In addition to ethical standards regarding the amount of fee a lawyer may charge, there are also standards regarding fee sharing. Generally, an attorney cannot share a fee in a case with a nonlawyer. This includes a paralegal. - The fee arrangement between the client and the attorney should always be in writing and signed by the client. In some jurisdictions, this is now required by law. However, even if not required, common sense dictates that the agreement should be clearly set forth in writing to avoid any dispute. The fee arrangement is usually included in a document referred to as a retainer agreement.

Communication with the Opposing Party

- Attorneys or paralegals violate ethical rules when they personally contact an opposing party who is represented by his own attorney. Contact must always be made with the attorney. If the opposing party is not represented by counsel, communication is allowed. If you are required to contact an opposing party, you should first verify that the opposing party is not represented. Naturally, an opposing party can be contacted to ascertain whether he is represented and who is representing him. However, once that information is disclosed, all further communication should cease. - One situation that sometimes occurs is that the opposing party, who is represented by an attorney, contacts you by telephone. (This is often a result of the failure of the opposing party's attorney to return telephone calls.) In such a situation you must tell the party that you cannot talk to him. You should also advise the party's attorney that her client attempted to talk to you about the case.

tolling the statute of limitations

- Certain events sometimes toll, or extend, the statute of limitations. When a statute of limitations is tolled, the time stops running. A common reason for tolling a statute of limitations is that the plaintiff is a minor. In such cases, the statute is tolled during the minority of the plaintiff and begins to run once the minor reaches the age of majority. Thus, if a 10-year-old child is injured in an automobile accident and the statute of limitations is normally two years, that two-year period does not begin to run until the child reaches the age of majority. The statute would expire on the child's 20th birthday (two years after reaching the age of majority). Do not assume, however, that the statute of limitations is always tolled during a child's minority. You must check the appropriate statutory law.

Confidentiality

- Communication between a client and an attorney is confidential. The attorney is prohibited from disclosing any information revealed to him by his client. Even mentioning the client's name, without discussing the facts of the case, may be a violation of this ethical requirement. As part of the litigation team, the paralegal is bound by the same rules. Whether you are present during conferences between the client and the attorney, whether the client directly communicates with you, or whether information is relayed to you by the attorney, you must honor the confidentiality. You should not discuss the case with anyone not directly involved in the case.

Feasibility of the Lawsuit

- Even though an attorney determines that a case has merit—that is, a cause of action exists—he may nevertheless decide that the lawsuit is not practical. Litigation takes a great deal of time and can cost a great deal of money, not only in attorney fees but also in costs. For example, it may be necessary to hire expert witnesses to establish certain facts. Experts charge substantial fees for their services. Numerous witnesses may need to be questioned and deposed. This also is costly. Before accepting a case, attorneys usually review it to see if it is practical. This involves reviewing the damages suffered by the plaintiff so that the value of the case can be determined. If the injured party's injuries are slight and result in little out-of-pocket expenses, the case might cost more than is reasonable. Preliminary investigation might also involve some research into the defendant's ability to pay a judgment. As a litigation paralegal, you might be asked to assist in doing this.

Turning Down a Case

- If an attorney decides not to accept a case, she must clearly communicate this to the individual concerned. This should be done in writing so that there is a record of the fact. Many attorneys have been sued for malpractice by individuals who claim that the attorney led them to believe that their cases were being handled and learned only after the statute of limitations had expired that the attorney had not, in fact, accepted the case. - In turning down a case, an attorney must exercise care in stating an opinion regarding the merits of the case to the prospective client. Attorneys are sometimes sued for malpractice for advising a person that he has no case if later another attorney concludes otherwise. It is also advisable to warn the person about any possible statute of limitations.

time limitations

- If an attorney decides to accept a case, a number of considerations arise. One of the first relates to time limitations for filing a lawsuit in court. - As a paralegal you must be aware of these time limits. Any time a new case is accepted by a law office, it must be carefully calendared and reviewed so that a lawsuit is filed in court within the proper time limits.

Confidentiality and Client Information

- In a modern law office, client information is stored in numerous, and sometimes unexpected, ways. Information is stored not only on the office computers. Copy machines, telephones, fax machines, and laptop computers may store copies of documents, e-mails, or text messages. Care must be taken to protect the confidentiality of this information, especially when equipment is "recycled." - Another current area of concern involves electronic transfer of documents. An electronic version of a document may contain "metadata." Metadata is information about the content and creation of the document and often includes confidential information, including the author of the document, date of creation of the document, and changes made in the document. Sending a document electronically makes that information available to anyone viewing the document unless methods are taken to protect the document. There are different ways of doing this. Various software programs will strip the metadata from the document. The document can be converted to a portable document format (PDF). Additionally, access to the document can be limited by adding a password. - Confidentiality issues are also a major concern today with the technology trend referred to as cloud computing. Traditionally, offices have used their desktop or laptop computers to create, manage, and store their documents. A recent technology trend changes this, by allowing these computer tasks to be accomplished without using software applications or storage capacity available on the office computer. Rather, an individual or business can access and use these with services provided by third parties over the Internet. (The term cloud is a metaphor used for the Internet.) The result is that documents are stored by a third party, and security and confidentiality are beyond the attorney's control. On the other hand, a law firm realizes many benefits. Not only is this trend financially beneficial, but it also offers the ability to share documents with clients or other attorneys. Additionally, the services offering cloud computing do provide security measures.

Laches

- In addition to the statute of limitations, equitable cases (cases in which the plaintiff is asking for something other than money damages) are governed by another time limitation known as laches. Laches is an equitable principle that prevents lawsuits from being filed when, in fairness to the defendant, too much time has elapsed, even though the statute of limitations may not have expired.

calculating the statute of limitations

- In calculating the statute of limitations, the code sections tell you not to count the first day, but do count the last day. The language is confusing but means only that if an accident happens on January 10 of one year, and the statute is a one-year statute of limitations, you must file the complaint on or before January 10 of the following year. However, if that day is a weekend or court holiday, you would have until the next court day to file your complaint.

Frivolous Claims

- Lawsuits that have no merit should not be pursued. Again, this is usually determined by the attorney, but the attorney may rely on your research in making this decision. If an attorney handles a frivolous case, he risks being sued himself by the defendant in the action, in addition to subjecting himself to disciplinary proceedings by the state bar association. Furthermore, pursuing any claim or defense that has no evidentiary support is also a violation of Rule 11 of the Federal Rules of Civil Procedure. Any attorney violating this rule is subject to sanctions or penalties imposed by the court

Communication with the Client

- Lawyers owe a duty to their clients to keep them advised about the status of their cases. Failure of lawyers to do this is the basis of one of the most common complaints against attorneys. Litigation can sometimes take years, and much of the litigation process does not personally involve the client. If a lawyer fails to communicate with his client on a regular basis, the client may think the attorney is doing nothing on the case. As a paralegal, you can be an asset to the attorney in maintaining communication with the client. In fact, parties often feel more comfortable dealing with the paralegal. In any event, if you have been assigned to a case, you should establish some procedure for regularly advising the client about the status of his action. This requires that you calendar cases for regular review. In addition, the most important rule to remember is to always return phone calls promptly. You should also keep a record of all telephone calls.

Law Office Procedures

- Litigation is a business, and as such a litigation law firm must follow accepted business practices. Those practices, however, must reflect the legal and ethical requirements and obligations discussed earlier in this chapter.

Tickler Systems

- Missing a statute of limitations or a claim statute can result in a malpractice claim against the law firm. Therefore, all litigation firms have calendar or tracking systems to remind them of these and other important dates. These calendaring systems are known as tickler system. - Even though a firm uses a computer, certain precautions should always be followed. First, when a case is tickled for the statute of limitations, it should be calendared early enough to allow for preparation of the complaint and for obtaining any necessary signatures. Second, the file should be re-calendared for a date near the statute of limitations, at which time it should be checked to verify that the complaint has in fact been filed. Third, if calendaring the case is not your responsibility as a litigation paralegal, you should still check cases assigned to you to make sure that proper calendaring has occurred. You might even wish to keep your own calendar, in addition to the firm's calendar, for cases assigned to you.

Competency to Handle the Case

- Obviously, an attorney should not accept a case if he does not possess the ability, knowledge, or time to handle it. This decision is up to the attorney, and the paralegal has little, if any, input into it. However, competency means more than simply having the ability to handle a case. It also means that attorneys are prohibited from neglecting cases that they have accepted. This can concern a paralegal. When you are assigned to work on a case, you should make sure that the case is not ignored. A tickling or calendaring system should be established to remind the attorney or paralegal to regularly review all cases.

Claim Statutes

- Some types of cases are governed by special statutes known as claim statute. This kind of statute requires that a written claim be presented to the defendant before a lawsuit is filed. The time for filing the lawsuit is usually determined by the date that the claim is denied. Claim statutes are common when a governmental entity is sued or when the defendant is deceased and a probate is pending. - Time limits for filing claims are often not tolled during minority or other legal disabilities - You must be careful to check specific laws to determine this. Claim statutes usually contain a provision dictating when a lawsuit must be filed if the claim is denied. These time limits must be followed just as any statute of limitations. - You must be careful to check specific laws to determine this. Claim statutes usually contain a provision dictating when a lawsuit must be filed if the claim is denied. These time limits must be followed just as any statute of limitations. - Basically, a written claim requires the following: notification to a prospective defendant of intent to sue identifying information about the person making the claim description of the nature of the claim the amount of the claim - After the claim is properly submitted, the person against whom the claim is made has a certain time in which to accept or reject the claim. A lawsuit cannot be filed until this happens

Confidentiality and Client Communication

- Technology offers convenient methods of communication with clients as well as with others. Cellular phones, e-mail, and facsimile transmissions have become standard modes of communication. Today, busy attorneys can send and receive e-mail through their "smartphones." However, using cellular phones and the Internet can present security risks. Communications over cellular phones and the Internet can be intercepted (either intentionally or accidentally). Greater risks result from simple misuse of the technology. For example, cell phones are easily used in public places where conversations can be overheard. In a careless moment, an individual can easily send fax transmissions to the wrongparty. E-mails sent to a client might be retrieved by a client at work, exposing the communication to interception by the employer. A recent U.S. Supreme Court case allowed a government employer (a police department) to search the text messages of one of its officers. However, in its opinion, the Court recognized that many legal questions remain unanswered. The Court said, "Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.... At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve." (City of Ontario v. Quon, 130 S.Ct. 2619, 2629-2630 [2010]). Whatever privacy rights do or do not exist, an ethical attorney or paralegal must use caution and common sense in using technology to communicate with clients.

Statute of Limitations

- The basic time limit for filing a lawsuit in court is known as a statute of limitations. Unless a case is filed within the appropriate statute of limitations, it will be dismissed, regardless of the merits of the case. Statutes of limitations are found in state and federal codes and vary from one jurisdiction to another. Statutes of limitations also differ depending on the type of case. - Commonly, statutes of limitations set time limits for filing a complaint and are easily determined and calculated - In some cases, however, time limitations are not as easily determined. For example, in professional malpractice cases or in fraud cases, the statute of limitations might start to run not from the date of the malpractice or fraudulent act, but from the date that the plaintiff discovers or should have discovered the malpractice or fraud. This can be years after the defendant's wrongdoing. This kind of statute of limitations often presents numerous legal and factual questions, and proving the date on which the plaintiff discovered or should have discovered the wrongdoing becomes an important part of the trial process.

Basic Procedures

- The following outlines typical litigation office procedures that occur when a law firm is faced with a new client: 1. As soon as a potential client contacts a firm, a conflicts check is done. 2. If no conflict exists, an attorney confers with the potential client and makes an initial assessment of the facts. 3. The attorney determines that a valid cause of action exists, that the statute of limitations has not run out, and that pursuing the case is reasonable. (Facts uncovered during the investigative stage of the case may alter this assessment.) 4. The attorney explains to the potential client the details of the law firm's representation, including the fee arrangements. 5. If the potential client agrees to pursue the case, a retainer agreement is prepared and signed by the client and the attorney. 6. An office file is created. The file must contain basic information about the case and contact information regarding the client. This information is usually kept in a physical file as well as in an electronic format. 7. A financial ledger sheet is created to keep track of all expenses and income related to the case. 8. If applicable, retainers and cost advances are deposited into an attorney trust account. 9. Dates for possible claim statutes and statutes of limitation are put in a tickler file. The file is also calendared for review. 10. The client is introduced to the paralegal, and the role of the paralegal is explained. 11. A letter is sent to potential defendants, or if applicable their attorney or insurance carriers, notifying them of representation. - With developments in technology, many of the typical office procedures have become automated. Numerous legal software programs now enable law offices to function in an electronic environment. Although some firms use generally designed calendar programs such as Microsoft Outlook, other firms choose calendaring software with features that are specifically designed for law offices. Such programs are often referred to as "time and billing" software. Examples of these are AbacusLaw, Amicus Attorney, ProLaw, Time Matters, Tabs3 Billing, Timeslips, and CaseMap. Some law firms use software programs specially designed for their firms. - Today most "time and billing" programs not only contain a calendar but also contain a to-do list, or memo pad, an address book, or contact list. These programs also allow the user to conduct conflict checks, share documents for editing, and maintain time and expense records for billing purposes. You can read more about these products on their Web pages. - In addition to using legal software to accomplish day-to-day office procedures, some of the more general case management software programs allow attorneys to manage all aspects of their cases

Document Retention Advice

- The use of technology often results in the generation of a multitude of documents, either in paper or in electronic format. Most businesses have a policy regarding the destruction of these documents. Periodically paper documents are shredded and electronic documents deleted. However, once it becomes reasonably probable that a business might be sued, that business has an obligation to preserve all documents related to the litigation. Attorneys for such a business have a legal and ethical duty to become familiar with the business document retention policy and to properly advise businesses about the obligation to retain documents related to probable litigation. - Ethical Standards: The Litigation Process ✓ Communicate regularly with your client. ✓ Do not communicate directly with an opposing party who is represented by an attorney. ✓ Keep all information about the case and the client confidential. ✓ Be honest in all representations to the court and to opposing counsel. ✓ Do not set unconscionable fees. ✓ Clearly explain fee arrangements to client and prepare written fee agreement if required by state law. ✓ Do not share fees with nonattorneys. ✓ Keep all client funds in a trust account. ✓ Never commingle personal or business funds with trust account funds. ✓ Use caution and common sense when using technology.