2. The Client-Lawyer Relationship Flashcards
how a client-lawyer relationship is formed
1) lawyer and client mutually agree
2) lawyer’s IMPLIED ASSENT; client’s REASONABLE RELIANCE
3) court appointment
implied assent = an action that would seem to confirm to the would-be client that you’re interested in serving as their lawyer.
reasonable reliance = client does something or foregoes something (e.g. not filing a suit) because he has good cause to believe that you’re his lawyer.
how to avoid implied consent
clearly decline ASAP—even if someone else implies assent on your behalf, YOU have to clear it up.
types of fees
1) hourly (most common—can be either in cash or in kind)
2) flat fees
3) contingent fees
HOW to formalize non-contingent fee agreements
writing is PREFERRED, but not required
WHEN to formalize fee agreements
before OR within REASONABLE time of representation…
EXCEPT if you’re doing routine work for a client when they already know the fee
fee changes
communicate ASAP
fee amounts
MUST BE REASONABLE. consider…
1) time and labor
2) nature of relationship
3) fixed/contingent (i.e. contingent is usually higher, since it’s a gamble)
4) etc. (not an exhaustive list)
collecting fees
you can collect some (or all) beforehand, BUT YOU MUST RETURN ANY PORTION YOU DON’T EARN. For example, if they fire you halfway through, return half.
contingent fees vs. retainer fees
retainer = reservation (you’re busy; they pay to make sure you’re on the case when the time comes). NOT A DOWN PAYMENT—any fees you earn for actually working are entirely separate.
when CAN’T you have contingent fees?
1) criminal cases
2) domestic relations cases (e.g. divorce), BUT it’s limited scope!!! If you’re not NEGOTIATING, it’s fine—you can charge contingency to hunt down alimony payments that have already been set, for example.
3) unreasonable cases for contingencies—for example, if you can finish the work required for a huge settlement in a few hours, it’s unethical to take 1/3 of their earnings.
HOW to set up a contingency agreement
MUST BE…
1) in writing
2) signed by client
3) DISCLOSE…(a) who’s paying expenses, (b) how fee will be calculated (after settlement vs. after jury vs. after appeal), (c) which expenses will be deducted and when, AND (d) what CLIENT must pay, even if they lose the case.
HOW to close out a contingency agreement
Issue a WRITTEN statement at case conclusion that expresses
1) outcome
2) how much goes to client
3) how client winnings were calculated
fee-splitting OUTSIDE the same law firm
obviously, it’s fine to split fees within firms. BUT it’s tricky outside…let’s say, for example, you make a referral.
NO REFERRAL FEES!!!
1) You have to stay involved/responsible to get a cut.
2) Client has to consent
HOW to split legal fees
1) proportionate to work conducted
2) split however you want, BUT ONLY IF each lawyer claims JOINT RESPONSIBILITY for outcome, ethically and financially (client must know).
3) client MUST consent to the split in WRITING
4) TOTAL fee has to be reasonable (can’t charge 2x normal rate since 2 lawyers, e.g.)
scope of representation
1) you can limit scope IF it’s reasonable (e.g. I’ll negotiate the matter, but if you want to sue, I’m out.) Client HAS to give consent.
2) CANNOT advise client to commit crime/fraud, but you CAN warn against consequences.
decision-making authority
CLIENTS: substantive decisions (whether to settle, what plea to enter, whether to waive jury trial, whether client will testify, whether to appeal)
LAWYERS: tactical/procedural decisions (which court to file in, which issues to raise, which discovery methods—BUT you have to consult with your client, especially if a decision might rack up $$$)
agency relationship
lawyers and clients have an agency/principal relationship, RESPECTIVELY. Think about whether there’s actual/apparent authority. In MOST situations, there’s apparent authority created just in the fact that the client hired you, but SOMETIMES, that’s not enough (e.g. if you act on your own accord to enter a plea, client could say, “There’s no apparent authority for agent to act on my behalf here.”
You have to INFORM 3P when AGENCY ENDS
diminished capacity of client
maintain a normal relationship, AS MUCH AS POSSIBLE.
BUT if there’s a risk of substantial harm, PROTECTIVE ACTION…CONSULT WITH FAMILY OR CONTACT ORGANIZATIONS.
Even if PA, confidentiality always applies, but you can reveal what’s necessary.
required communications with client
1) case status updates
2) game plan
3) response to reasonable requests for information
4) anything regarding informed consent
communication best practice
DO NOT LET IT FESTER. Communicate quickly.
consent & plea bargains
You CANNOT accept/deny a plea bargain without a client’s informed consent UNLESS client expressly authorized acceptance/rejection of certain offers.
HOW relationship ends
1) agreement
2) you’re fired
3) withdrawal
MANDATORY withdrawal
1) your own mental/physical condition materially impairs your ability to serve effectively.
2) representation is violation of rules of conduct (e.g. non-waivable conflict of interest)
3) you’re fired
what to do if you feel like you might need to withdraw…
consult with witness. They might have made an honest, correctable mistake.
