A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.

1. WHY YOU SHOULD TEAM UP
AND MAKE FRIENDS:
YOUR PROFESSIONAL RESPONSIBILITIES WHEN
ACCEPTING A PERSONAL INJURY CASE
Mike Young and Rich Mrazik
November 7, 2013
parsonsbehle.com

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Utah‟s new(ish) Rule 26.2 provides a helpful
vehicle for discussing our ethical duties.
– Duty of competence
– Duty of diligence
– Permissible fee splitting arrangements
Overview

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 Applies to “all actions seeking damages arising
out of personal physical injuries or physical
sickness”
 Requires Plaintiff‟s Rule 26(a) initial disclosures
to include a multitude of information regarding
the plaintiff‟s medical and employment history
 Required information must be served within 14
days after filing of the first answer to the
complaint
Utah R. Civ. P. 26.2
November 7, 2013

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– A list of all health care providers who have
treated or examined the plaintiff for the injury
at issue;
– A list of all other health care providers who
treated or examined the plaintiff for any
reason in the 5 years before the event giving
rise to the claim;
Utah R. Civ. P. 26.2 (cont.)
November 7, 2013

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– Plaintiff‟s SSN or Medicare health insurance
claim number, full name, and date of birth;
– A description of all disability or income-
replacement benefits received if loss of wages
or loss of earning capacity is claimed;
Utah R. Civ. P. 26.2 (cont.)
November 7, 2013

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– A list of plaintiff‟s employers for the 5 years
preceding the event giving rise to the claim if
loss of wages or loss of earning capacity is
claimed;
– Copies of all bills, statements, or receipts for
medical care, prescriptions, or other out-of-
pocket expenses incurred as a result of the
injury at issue.
Utah R. Civ. P. 26.2 (cont.)
November 7, 2013

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– Copies of all investigative reports prepared
by any public official or agency and in the
possession of plaintiff or counsel that describe
the event giving rise to the claim.
– Except as protected by Rule 26(b)(5), copies
of all written or recorded statements of
individuals, in the possession of plaintiff or
counsel, regarding the event giving rise to the
claim or the nature or extent of the injury.
Utah R. Civ. P. 26.2 (cont.)
November 7, 2013

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Rule 1.1. Competence.
 A lawyer shall provide competent
representation to a client.
 Competent representation requires the
legal knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.
Duty of Competence

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In determining whether a lawyer employs the requisite
knowledge and skill in a particular matter, relevant
factors include:
 the relative complexity of the matter;
 the lawyer's training and experience;
 the preparation and study the lawyer is able to give
the matter; and
 whether it is feasible to refer the matter to, or
associate or consult with, a lawyer of established
competence in the field in question.
Duty of Competence (cont.)

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Rule 1.3. Diligence.
 A lawyer shall act with reasonable
diligence and promptness in representing
a client.
 A lawyer‟s work load must be controlled so
that each matter can be handled
competently.
Duty of Diligence

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The proposition of filing a complaint with the
hopes of entering a quick settlement poses
ethical risks.
 “A lawyer should carry through to conclusion all
matters undertaken for a client.”
– R. Prof. Conduct 1.3, cmt. 4.
 “A lawyer should not accept representation in a
matter unless it can be performed competently,
promptly, . . . and to completion.”
– R. Prof. Conduct 1.16, cmt. 1.
Beware the idea of a
“quick settlement”

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 Expecting a “quick settlement” is a mistake.
 Assuming you can develop the necessary
expertise to represent your client competently
and diligently “later” is also dangerous.
 But personal injury cases offer interesting and
rewarding work, so . . .
 Make friends.
So where does this leave us?

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 “Referral or forwarding fees, which by their
nature involve an economic benefit for little
or no actual services performed beyond
the referral, are not permitted in Utah.”
– Kate A. Toomey, Practice Pointers: Fee Splitting and Referral Fees Under the Rules of
Professional Conduct, 12-Sep. Utah B.J. 17, *17 (1999) (citing Phillips v. Joyce, 523 N.E.2d
933, 939 n.5 (Ill. App. Ct. 1988) (emphasis added).
 So, what is allowed?
–Look to Rule 1.5
Permissible Fee Splitting Arrangements

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“A division of a fee between lawyers who are
not in the same firm may be made only if:
 (e)(1) the division is in proportion to the services
performed by each lawyer or each lawyer assumes
joint responsibility for the representation;
 (e)(2) the client agrees to the arrangement, including
the share each lawyer will receive, and the
agreement is confirmed in writing; and
 (e)(3) the total fee is reasonable.
Permissible Fee Splitting Arrangements:
Rule 1.5(e)

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“… the division is in proportion to the
services performed by each lawyer …”
 Precludes an attorney from collecting fees
for merely referring a matter to another
attorney
 Requires actual participation in the matter
by the referring attorney
Permissible Fee Splitting Arrangements:
proportionality prong

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“… each lawyer assumes joint responsibility
for the representation …”
 “The lawyer receiving a referral fee under a joint-
responsibility arrangement cannot simply „hand
off‟ the client to the receiving lawyer.”
– Ethics Advisory Opinion Committee (EAOC) 121, May a Lawyer Pay Another Lawyer a Fee
for Referring a Case? (Dec. 16, 1994)
 Requires each lawyer to assume “responsibility
for the representation as a whole.”
– R. Prof. Conduct 1.5(e), cmt. 7.
Permissible Fee Splitting Arrangements:
joint responsibility prong

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 Mike Young
– myoung@parsonsbehle.com
– 801.536.6963
 Rich Mrazik
– rmrazik@parsonsbehle.com
– 801.536.6931
THANK YOU