Differences from ABA Model Rules
|Rule 1.2(c) Limited Scope||Significant Changes|
|Rule 5.4(a) Fee-Sharing||Minor Clerical Changes|
|Rules 5.4(b)-(d) Non-Lawyer Ownership||Same as Model Rule|
|Rule 5.5. Unauthorized Practice of Law||Significant Changes|
|Rule 5.7 Law Related Services||Does Not Have|
|Rule 6.5 Limited Scope||Same as Model Rule|
|Rule 7.2(b) Lawyer Referral||Significant Changes|
|Cloud Computing Advisory||No|
|Technology Competency Rules||Yes|
ABA Rule 1.2(c) (Limited Scope)
RULE 1.2 – SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.
(1) The client’s informed consent must be confirmed in writing unless:
(i) the representation of the client consists solely of telephone consultation;
(ii) the representation is provided by a lawyer employed by a nonprofit legal services program or participating in a nonprofit court-annexed legal services program and the lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms; or
(iii) the court appoints the attorney for a limited purpose that is set forth in the appointment order.
(2) If the client gives informed consent in writing signed by the client,there shall be a presumption that:
(i) the representation is limited to the attorney and the services described in writing; and
(ii) the attorney does not represent the client generally or in matters other than those identified in the writing..
Montana State Bar Ass’n Advisory Op. 900409 (1990) (It is unethical for an attorney to sell “do-it-yourself” divorce kits. Kits lead clients to believe that they need no further consultation with a lawyer and present a very real possibility that client will suffer harm as a result of failure of the kit to meet particular needs.)
Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999) (Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of “ghost writing,” which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of “unbundled” or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.)
ABA Rule 5.4(a) (Fee-sharing)
Same as Model Rule.
ABA Rule 5.4(b – d) Non-lawyer ownership
Same as Model Rule.
ABA Rule 5.5 (UPL)
RULE 5.5 – UNAUTHORIZED PRACTICE OF LAW
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
(b) A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this state to the lawyers’ employer or its organizational affiliates provided the those legal services are not services for which Montana requires pro hac vice admission and, when provided by a foreign lawyer and requiring advice on the law of this or another jurisdiction of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice. For purposes of this subsection, the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.
In re Bagley, 433 B.R. 325 (Bankr. D. Mont. 2010) (ordering disgorgement of fees)
Pulse v. N. Am. Land Title Co., 707 P.2d 1105 (Mont. 1985) (“drafting or filling in of blanks in printed forms of instruments dealing with land” constitutes practice of law)
Sparks v. Johnson, 826 P.2d 928 (Mont. 1992) (Representing someone in court is practice of law )
Pulse v. North American Land Title Co. of Montana, 707 P.2d 1105 (Mont. 1985) (What constitutes the practice of law is not easily defined. In Cowern v. Nelson (1940), 207 Minn. 642, 290 N.W. 795, 797, the Minnesota Court stated: “The line between what is and what is not the practice of law cannot be drawn with precision. Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice may also be done by others without wrongful invasion of the lawyer’s field.”)
ABA Rule 5.7 (Law Related Services)
Does not adopt.
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
ABA Rule 7.2(b) (Lawyer referral)
RULE 7.2 – ADVERTISING
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; and
(3) pay for a law practice in accordance with Rule 1.19.
Mont. Ethics Op. 960227 (1996) (lawyer may not participate in chamber of commerce referral network that awards “points” for leads because leads are not usual charges under rule)
Mont. Ethics Op. 960227 (1996) (lawyer may not participate in network that requires members to make certain number of referrals to other members; leads given by lawyer to network members would constitute something of value in exchange for referrals)
No opinions available.
Under Preamble (A Lawyer’s Responsibilities)
(5) In all professional functions a lawyer should be competent, prompt and diligent. Competence implies an obligation to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.