EDITED BY:
Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Carrie E. Parker, Legal Editor
Luzianne Jones, Design & Publishing Editor
PUBLISHED BY: Joseph, Hollander & Craft LLC
PUBLICATION DATE: July 31, 2025
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 6, No. 7
FEATURE ARTICLE: Lawyering Ethically in a Time of Uncertainty
Lawyers are used to operating in fluid legal conditions, but adapting can be especially difficult when changes are rapid and sweeping. For example, major legislation like the One Big Beautiful Bill Act changes multiple areas of the law. In addition, a very active federal judiciary, including the U.S. Supreme Court, has changed the law in other ways recently.
In dealing with change, two provisions of the Rules of Professional Conduct are most important: Rule 1.1, which deals with the lawyer’s ethical responsibility to be competent, and Rule 2.1, which addresses the lawyer’s role as a client advisor.
Kansas Rule of Professional Conduct 1.1 states:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment 8 to the rule explains:
. . .
NEW AUTHORITY: North Carolina Formal Ethics Opinion 3
On January 24, 2025, the North Carolina State Bar adopted Formal Ethics Opinion 3, concerning an interesting problem that had arisen for a firm practicing estate planning. The law firm found that many of its lawyers were being required to take on collateral activities, such as giving depositions, and were, presumably, having some difficulty being paid for this work from estates. Thus, the firm wanted advice as to whether it could ethically include the following provision in its client retainer agreements:
Client agrees that if a member of or person rendering services to Law Firm is deposed, called to testify, or required to respond to discovery in the context of legal proceedings concerning any aspect of Client’s estate plan, Law Firm will be compensated for that person’s services at his or her hourly rate to clients at the time of the deposition, other testimony, or other discovery. Client also agrees that Law Firm will be entitled to full reimbursement for costs incurred in connection with the production of documents in response to subpoenas and demands for the production of documents issued in any such legal proceedings. This agreement will bind not only Client but also anyone managing Client’s financial affairs (before and after Client’s death), Client’s heirs, and the beneficiaries under Client’s estate planning documents.
The North Carolina Bar answered with a qualified “no.”
According to the opinion, such a broad provision would be unethical, even if the fees charged met the requirement of enforceability and legality:
Even presuming the proposed fee provision is legal and enforceable, the proposed provision fails to comply with other requirements set out in Rule 1.5. Rule 1.5(a) provides that a lawyer shall not make an agreement for, charge, or collect “a clearly excessive fee.” The proposed provision requires the client’s estate to compensate any lawyer in the firm who is deposed, called to testify, or required to respond to discovery in the context of legal proceedings concerning any aspect of the client’s estate plan. There is no exclusion in the provision for legal fees resulting from a firm lawyer’s incompetence or negligence. Law Firm may not charge an estate planning client for future legal services necessitated by a lawyer’s incompetence or negligence in drafting the client’s estate plan. Such charges would be clearly excessive in violation of Rule 1.5(a).
The opinion concluded the provision was also impermissible under Rule 1.5(b) in certain circumstances:
In addition, the proposed fee agreement provision is too vague to comply with Rule 1.5(b). Rule 1.5(b) provides that when a lawyer has not regularly represented a client, the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Comment [2] to Rule 1.5 states that the writing should state “the general nature of the legal services to be provided, the basis, rate or total amount of the fee, and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation.” The language in the proposed provision does not adequately provide the “basis, rate or total amount” of the future fees…
However, the opinion left open the possibility that some prospective fee agreements might be permissible:
We similarly conclude that including a provision in a fee agreement for payment of the lawyer’s fees and expenses for future testimony or discovery related to the services rendered is permissible, provided that (1) the scope of the provision is limited, (2) the fees and expenses are not clearly excessive, (3) the terms of the provision are clearly communicated to the client in a written fee agreement, and (4) the client consents to the provision.
It provided an example of a prospective probate fee arrangement that would be permissible in North Carolina:
Client agrees or directs Client’s estate to compensate Law Firm at our normal hourly rates, not to exceed 3% per annum above Law Firm’s current rate as specified in this agreement, plus costs and expenses, for work done by Law Firm where (1) Law Firm is requested or authorized by you or your estate, or required by government regulation, subpoena, or other legal process, to produce information or our personnel as witnesses with respect to your estate plan or our work for you in the representation; (2) Law Firm is not a party to the proceeding in which the information is sought; and (3) the quality, sufficiency, or effectiveness of the Law Firm’s work is not in question in the proceeding. This obligation applies even if our representation of you has ended. Any fees and expenses charged to Client or Client’s estate shall not be clearly excessive, and Law Firm will make every reasonable effort to minimize time, costs, or expenses related to such a request.
For estate planning attorneys and any attorney who has considered including prospective fee provisions in an engagement agreement, North Carolina Formal Ethics Opinion 3 provides insight and guidance not available from many other sources.
ETHICS & MALPRACTICE RESEARCH TIP: New Articles from the Current Index to Legal Periodicals
1. Gregory C. Sisk, Addressing Witness Coaching by Cross-Examination, 15 St. Mary’s Journal on Legal Ethics and Malpractice 197 (2025).
Professor Sisk, a well-known scholar of legal ethics explores a particularly troubling problem: how far may a lawyer go in “preparing” a witness for trial without crossing the ethical line?
2. Anthony Song & Justine Rogers, Lawfluencers: Legal Professionalism on TikTok and YouTube, 37 Georgetown Journal of Legal Ethics 507 (2025).
The two authors, both from Australia, examine the rise of a new type of social media star, the “lawfluencer,” and the ethical issues with such a role.
A BLAST FROM THE PAST: Adventures of an Attorney
Generative AI issues may have pushed to the forefront questions regarding the adequacy of supervision and document review, but this has been a potential problem area for lawyers for many years. The following quote is from 1872:
“Do you commonly read letters for your clerks to copy, Mr. Sharpe?”
“No, Sir.”
“It would be rather an inconvenient practice?”
“Certainly.”
“Did you examine this copy after he had made it?”
“Not that I remember; certainly not to check its accuracy.”
“Then you cannot swear to its accuracy?”
“I cannot; but I believe it to be accurate.”
— Samuel Warren, Adventures of an Attorney in Search of a Practice 246 (1872).
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 6, No. 7
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 26 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.
