2. The Client-Lawyer Relationship

Question 1

how a client-lawyer relationship is formed

Answer 1

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.

Question 2

how to avoid implied consent

Answer 2

clearly decline ASAP—even if someone else implies assent on your behalf, YOU have to clear it up.

Question 3

types of fees

Answer 3

1) hourly (most common—can be either in cash or in kind)
2) flat fees
3) contingent fees

Question 4

HOW to formalize non-contingent fee agreements

Answer 4

writing is PREFERRED, but not required

Question 5

WHEN to formalize fee agreements

Answer 5

before OR within REASONABLE time of representation…

EXCEPT if you’re doing routine work for a client when they already know the fee

Question 6

fee changes

Answer 6

communicate ASAP

Question 7

fee amounts

Answer 7

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)

Question 8

collecting fees

Answer 8

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.

Question 9

contingent fees vs. retainer fees

Answer 9

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.

Question 10

when CAN’T you have contingent fees?

Answer 10

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.

Question 11

HOW to set up a contingency agreement

Answer 11

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.

Question 12

HOW to close out a contingency agreement

Answer 12

Issue a WRITTEN statement at case conclusion that expresses

1) outcome
2) how much goes to client
3) how client winnings were calculated

Question 13

fee-splitting OUTSIDE the same law firm

Answer 13

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

Question 14

HOW to split legal fees

Answer 14

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.)

Question 15

scope of representation

Answer 15

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.

Question 16

decision-making authority

Answer 16

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 $$$)

Question 17

agency relationship

Answer 17

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

Question 18

diminished capacity of client

Answer 18

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.

Question 19

required communications with client

Answer 19

1) case status updates
2) game plan
3) response to reasonable requests for information
4) anything regarding informed consent

Question 20

communication best practice

Answer 20

DO NOT LET IT FESTER. Communicate quickly.

Question 21

consent & plea bargains

Answer 21

You CANNOT accept/deny a plea bargain without a client’s informed consent UNLESS client expressly authorized acceptance/rejection of certain offers.

Question 22

HOW relationship ends

Answer 22

1) agreement
2) you’re fired
3) withdrawal

Question 23

MANDATORY withdrawal

Answer 23

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

Question 24

what to do if you feel like you might need to withdraw…

Answer 24

consult with witness. They might have made an honest, correctable mistake.

Question 25

PERMISSIVE withdrawal

Answer 25

1) any reason if NO MATERIAL ADVERSE EFFECT. OTHERWISE, consider the following.
2) client doing something criminal/fraudulent (or you reasonably believe so) with your services
3) client used lawyer’s services in PAST to commit crime/fraud
4) client’s actions are repugnant
5) client has made it UNREASONABLY difficult to represent them
6) client has failed to fulfill an obligation (e.g. not paid), IF YOU WARN beforehand.
7) unreasonable financial burden
8) OTHER GOOD CAUSE

Question 26

court permission to withdraw

Answer 26

is NECESSARY if…

1) in midst of litigation
2) you’re court-appointed

Question 27

what happens to the money if fired/withdrawn?

Answer 27

If fired with good cause, you might forfeit.

If fired with bad cause/withdrawn, ykjlxkjfof

Question 28

post-termination

Answer 28

you OWE duty to wrap up well (give them docs, let them know about deadlines, etc.)

Question 29

the EXCEPTION to “don’t tell your client to break laws”

Answer 29

A lawyer may also counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. One way to do this is by violating a statute to test its validity or scope in an enforcement proceeding. Thus, the lawyer here wouldn’t be subject to discipline for telling the client that one way to get legal standing is to disobey the statute.

Question 30

the EXCEPTION to mandatory withdrawal

Answer 30

However, when an attorney seeks to withdraw from a case and the court denies the necessary permission, the attorney has to continue the representation. This is true even if the lawyer attempted to withdraw on a mandatory ground.

Question 31

WHAT does a client owe a contingent lawyer if the client fires the lawyer before prevailing in court?

Answer 31

When a client hires a lawyer on a contingent fee basis and then fires the lawyer before the case is over, the lawyer is still entitled to recovery for the reasonable value of the work done before the firing. However, the lawyer’s claim doesn’t arise until the contingency comes to pass.

Question 32

what if your fee is too high?

Answer 32

you risk discipline AND the possibility of the court not enforcing it

Question 33

charging liens

Answer 33

When a lawyer exercises a charging lien, any recovery obtained for the client serves as security for the lawyer’s fees. When a lawyer exercises a retaining lien, the lawyer holds documents, funds, and property of the client until his fee is paid.