1. Finding Client and Entering Into A Relationship With Them Flashcards
Rule 7.1 Communications Concerning a Lawyer’s Services
a lawyer must not make false, misleading, or deceptive statements about their services.
What should the Contingent Fee disclaimer read?
“Contingent attorney fees apply only to attorney services and may not be allowed in all cases. Clients typically must cover court costs and other legal expenses.”
What should the disclaimer ‘no fee unless you win’ state?
“No fee unless you win” refers to attorney fees only. Clients usually pay court costs and other legal expenses. Contingent fees aren’t allowed in all case types.”
Does a lawyer have the right to indicate their practice field?
Yes. a lawyer has a right to indicate in any communication that he does or does not practice in a particular field of law.
Can a lawyer communicate their specialty in a particular field of law?
Yes, if they have experience, specialized training, education, or certification from a recognized entity so long as the statement is not false or misleading.
What does Georgia require for a certifying organization?
The certifying organization must be authorized by the appropriate state agency or the ABA.
What is the definition of Advertising in legal services?
Advertising refers to broadly communicating information about a lawyer’s services without personally targeting specific individuals for employment.
Lawyers may advertise their services but must include their name and office address. Advertisements must not mislead or create unjustified expectations.
What is the definition of Solicitation in legal services?
Solicitation involves directly contacting a prospective client personally or by live phone to seek employment for a specific matter.
How can a lawyer advertise their services?
A lawyer may advertise through all forms of public media and written communication not involving personal contact, provided the communication is not false, fraudulent, deceptive, or misleading.
What are the recordkeeping requirements for advertisements?
A copy of the recording of any advertisement or communication must be kept for two years after its last dissemination.
Can a lawyer pay for public communication?
Yes.
Rule 7.3-Solicitation of Clients:
Direct in-person, live telephone, or real-time electronic solicitation of clients is prohibited if the motive is for pecuniary gain unless the person contacted is a lawyer or has a prior relationship with the lawyer.
True or False: A lawyer cannot directly solicit employment from nonlawyers who haven’t requested their services, either in person or by live phone contact.
True.
However, solicitation is permitted through direct contact with other lawyers.
Written Communications
In Georgia, a lawyer cannot send promotional communications to a prospective client if:
- The person has expressed disinterest in such messages;
- The message uses coercion, duress, or other unethical tactics;
- It concerns a personal injury or wrongful death related to a recent accident or disaster occurring less than 30 days ago; or
- The recipient’s condition impairs their judgment in hiring a lawyer.
Written communications to prospective clients, unless they are close friends, relatives, or current/former clients, must be clearly labeled
“Advertisement” on both the envelope and at the top of each page in a type size no smaller than the largest used in the letter’s body.
What is the rule for prohibition against payment for referrals?
A lawyer is prohibited from compensating or offering value to someone for recommending their services, including purchasing leads or rewarding referrals
What is the EXCEPTION to the prohibition against payment for referrals?
A lawyer may accept clients through a legal services plan or prepaid legal service organization but cannot own or direct the service in a way that violates professional independence.
Rule 1.16- a lawyer MUST refuse representation if:
- If the representation will result in violation of the rules of professional conduct; or
- if the lawyer’s physical or mental condition materially impairs their ability to represent the client.
Rule 1.16- a lawyer MAY withdraw if:
- It can be done without materially harming the client.
- the client persists in a fraudulent or criminal act.
- The client fails to fulfill an obligation to the lawyer, such as not paying fees. f
Can a lawyer accept representation in a matter they are not competent in?
No. A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion.
The lawyer should consider his own experience and expertise in the matter, the level of skill required, and the time and resources available to devote to the matter.
Can a lawyer accept employment in a matter in which they are not experienced?
Yes, if they have the ability, time, and resources to handle the matter competently.
Shared Responsibilities and Consultations
The attorney usually has responsibility for
technical and legal tactical decisions but must consult with the client about the means employed, and defer to the client on issues related to expense and effects on third parties.
What decision is allocated to the client in civil cases?
Whether to accept an offer of settlement.
What decisions belong to the client in criminal cases?
- The plea to be entered;
- whether to waive jury trial; and
- whether to testify.
Can a lawyer discuss the legal consequences of a proposed course of conduct with a client?
Yes.A lawyer may discuss the legal consequences of a proposed course of conduct with a client and counsel them to make a good faith effort to determine the law’s validity, scope, meaning, or application.
What can a lawyer not assist with?
Counseling a client to engage in fraud or criminal conduct.
When can a lawyer withdraw from representing a client?
- If the client persists in a course of action involving criminal or fraudulent services; or
- uses the lawyer’s services to perpetrate a crime or fraud.
Is a lawyer-client agreement on fees required to be in writing?
No, except for contingent fees.
When should a lawyer disclose their fees to new clients?
Preferably in writing, before or shortly after starting representation.
What is not allowed in the fee agreement?
- The agreement must not encourage the lawyer to reduce services or act against the client’s interests.
2.The lawyer should avoid limiting services in the agreement if further assistance is likely needed, unless the client is fully informed in advance.
Can a lawyer charging an unreasonable fee be able to obtain a judgment against a client for that amount?
No. A lawyer charging an unreasonable fee may not be able to obtain a judgment against a client for an unreasonable amount.
What are the eight factors to determine the reasonableness of a fee?
Factors include:
1. Required time and labor
2. Novelty and difficulty of the questions involved
3. Local standard charges for similar services
4. The case’s stakes and outcomes
5. Time constraints set by the client or situation
6. Duration and nature of the client-lawyer relationship
7. The performing lawyer’s experience, reputation, and skill
8. If the fee is fixed or contingent.
Are contingent fees generally valid? Why?
Yes. Contingent fees are generally valid because they provide a means for the litigation of causes that some private plaintiffs could otherwise not afford to pursue.
When are contingent fees prohibited?
- domestic relations matters based on the outcomes of divorces, alimony, support, or property settlements; and
- criminal defense cases.
What must a contingent fee agreement include?
It must include:
1. The method of calculating the fee
2. The percentage to the lawyer upon settlement, trial, or appeal
3. Whether expenses are deducted from the recovery
4. If these deductions occur before or after calculating the fee.
What must a lawyer provide upon conclusion of a matter?
A written statement of the outcome, including details of remittance and attorney’s fee.
Are contingent fees subject to reasonableness in amount?
Yes.
When is a Contingent Fee Excessive?
if it would leave the client with no recovery after the lawyer has been compensated.
Can a lawyer collect a fee in advance in the form of a retainer?
Yes.
Does a lawyer have to return any unearned portion of the retainer at the end of the relationship?
Yes. At the end of the relationship, the lawyer must usually return any unearned portion.
When can a lawyer charge a nonrefundable retainer?
A lawyer may request a nonrefundable retainer if accepting a client limits other work opportunities, provided the lawyer clearly informs the client about the retainer’s nonrefundable status.
What is a reasonable nonrefundable retainer?
One-half of the fee in any cases is a retainer and is due at any time, unless the lawyer, without sufficient cause, abandons the case before rendering service to that value.
How can a lawyer collect payment from a client?
A lawyer may collect a fee:
1. Through credit cards;
2. arranging a bank loan for a client;
3. taking an interest-bearing promissory note for a fee;
4. obtaining a lien upon a potential recovery to secure the payment of a fee.
Can a client agree to pay a lawyer through a transfer of property to the attorney?
Yes. A client can compensate a lawyer with property, except for interests in the client’s litigation, but these agreements require careful examination to prevent the lawyer from exploiting superior knowledge of the property’s value.
What is a division of attorney’s fees?
When two lawyers, who are not from the same firm, share a fee.
Is division of fees between members of the same firm permitted?
Yes.
When is a division of a fee between lawyers who are not in the same firm allowed?
A division of a fee between lawyers who are not in the same firm may be made only if:
1.it reflects the work each lawyer did or they agree in writing to share responsibility;
- the client is informed and agrees to each lawyer’s share; and
- the total fee is reasonable.
Are Referral or finder’s fees between lawyers permitted?
No. Referral or finder’s fees between lawyers (i.e., when one lawyer shares a fee not based upon the lawyer’s work on the matter) are not permitted unless each lawyer assumes joint responsibility for the representation and the client agrees in writing.
What happens if there is a Dispute over Fees?
lawyer may file suit to collect the fee, but only after trying to resolve the matter.A suit should be filed only to prevent fraud or gross imposition by the client.
What is the general rule regarding commingling a lawyer’s property with client property?
A lawyer must keep clients’ or third parties’ property separate from personal or business accounts.
Where must client and third-party funds be maintained?
Client and third-party funds must be kept in a separate account in:
- an approved institution in Georgia;
- the state of the lawyer’s office; or
- elsewhere with client or fiduciary written consent.
What should accounts for client and third-party funds be labeled?
As an:
*‘Attorney Trust Account,’ ‘
*Attorney Escrow Account,’ or
*‘Attorney Fiduciary Account.’
Funds or property disbursement to client
A lawyer must promptly notify a client or third party upon receiving funds or property in which they have an interest, deliver what they are entitled to, and provide a full accounting upon request.
How long must records of account funds be preserved?
For a period of six years after termination.
Accounting and Disputed Claims
If a dispute arises concerning their respective interests, the portion in dispute must be kept separate by the lawyer until the dispute is resolved.
Do lawyers have to maintain a trust client for all client or fidicurary funds?
Yes. Lawyers practicing in Georgia must maintain a trust account for all client or fiduciary funds, into which all such funds must be deposited and managed.
Can a lawyer deposit personal funds into a client trust account?
No, except to cover maintenance fees and service charges on the account.
Can unearned attorney’s fees be held in a client trust account?
Yes, until they are earned.
Does money given to a lawyer in advance for expenses need to be deposited into the client trust account?
Yes. Money given to a lawyer in advance for expenses must be deposited into the client-funds account.
Does joint money between a client and attorney need to be deposited into the client trust account?
Yes, the full amount must go into the client-funds account.
Can a lawyer draw funds from the client trust account for their own personal use?
No, except for earned attorney’s fees debited against the account of a specific client.
What must be done with clients’ funds held for more than a brief period?
They must be placed in an interest-bearing account.
What happens to the interest from clients’ funds in an interest-bearing account?
It is either paid to the client or to the Georgia Bar Foundation.
What is an IOTLA plan?
The interest on the client’s account is paid into a special fund for legal services to low-income recipients.
What must a lawyer do when funds exceed a nominal amount or are held for an extended period?
Create a separate account for the client with all interest paid to the client.
What must lawyers do with nominal amounts or short-term funds?
Deposit them into an IOLTA account with earnings payable to the Georgia Bar Foundation.
