Ethics and Professional Responsibility in Personal Injury Practice
Ethics questions in personal injury practice concentrate on fees, trust accounting, conflicts, and communications with represented parties.
Fees and agreements
MRPC 1.5 requires a contingent fee to be communicated in writing, state the percentage, and explain which expenses the client bears; the fee must be reasonable. Settlement of a minor's claim requires court approval under MCR 2.420. Referring a case in exchange for a share of the fee must comply with MRPC 1.5(e) and never involve a nonlawyer.
Conflicts
MRPC 1.7 governs concurrent conflicts - representing two passengers in the same crash can create a conflict over limited coverage. MRPC 1.9 governs former clients, and MRPC 1.10 imputes conflicts across the firm. Informed consent, confirmed in writing, is the cure where consent is available at all.
Trust accounting
MRPC 1.15 requires client and third-party funds to be held in trust, no commingling, and complete records. A disputed portion of a settlement must stay in trust until the dispute is resolved; disbursing it unilaterally invites discipline.
Communications
MRPC 4.2 bars contact with a person the lawyer knows to be represented, which can include a represented insured once counsel appears. MRPC 4.3 governs dealing with unrepresented persons, and MRPC 3.4 forbids counseling a client to conceal evidence.
Worked example
A paralegal is paid a per-signed-case bonus and tells a client to omit a prior injury from the medical history. The bonus implicates MRPC 5.4 and MRPC 7.2; the instruction implicates MRPC 3.4 and MRPC 8.4.
Traps
Treating a settlement deposit as the lawyer's money; assuming a written agreement cures an unreasonable fee; contacting an insured directly after the carrier's lawyer appears; assuming a common referral arrangement is permissible.