Client-Attoney Relationship Flashcards
What is the nature of the lawyer-client relationship?
- The relationship is contractual and begins by agreement between the client and lawyer.
- It is governed by agency and fiduciary principles:
* Lawyer acts on behalf of the client (agent).
* Lawyer must act in the client’s best interest (fiduciary). - Courts interpret ambiguities against the lawyer due to their greater knowledge and responsibility.
- The relationship can be modified by mutual consent, but always subject to ethical limits.
Example: If a lawyer includes a clause in a contract to collect a bonus for winning a case, courts will scrutinize whether that clause is fair.
How is a lawyer-client relationship formed?
- Created in three ways (Restatement §14):
1. **Express Agreement:** Client asks for legal help and lawyer agrees. 2. **Implied Agreement** through Reliance: Client asks for help and lawyer doesn’t clearly say no, and client reasonably relies.
3.Court Appointment: Tribunal assigns a lawyer to represent someone. - Reasonable reliance is key—if the client was reasonable in thinking they were being represented.
Example: If a lawyer’s secretary asks a prospective DUI client to send documents but doesn’t clarify representation isn’t guaranteed, a relationship may be formed.
When must a lawyer reject a case?
- Harassment Motive: Client wants to use legal system to harm someone (Rule 4.4(a)).
- Frivolous Position: No legal or factual basis for the claim (Rule 3.1).
- Lack of Competence: Lawyer is too inexperienced or too busy to provide competent service (Rule 1.1).
- Personal Conflict: Strong feelings prevent effective representation (Rule 1.7(a)(2)).
- Physical/Mental Impairment: Impairs lawyer’s ability to serve (Rule 1.16(a)(2)).
Example: A lawyer with a serious conflict of interest must decline a case even if they want to help.
What duties are owed to prospective clients?
- Even without formal representation:
- Confidentiality: Lawyer must keep information secret (Rule 1.18).
- Property Protection: Anything provided must be safeguarded.
- Reasonable Advice: Lawyer must give accurate, careful initial advice (e.g., statute of limitations).
Lawyer must also avoid taking new clients in related matters if the prospective client’s info would be harmful.
Example: A lawyer who hears confidential info during a consultation cannot represent the other party later.
Do lawyers have a duty to take unpopular or low-paying cases?
- Yes, to some extent. Lawyers are ethically encouraged to ensure equal access to justice.
- This includes handling some unpopular, controversial, or low-income clients.
- This duty is not mandatory but part of the profession’s pro bono ideals (Rule 6.2).
Example: A lawyer declining all legal aid or criminal defense work without reason may be violating ethical norms.
What are the rules for attorneys’ fees?
- Must be communicated promptly (before or within a reasonable time after starting).
- Writing not always required, except for contingent fees.
- Fee must be reasonable based on Rule 1.5(a) factors.
- Must notify client of changes in fee terms.
Example: A lawyer increasing rates during a long case must inform the client clearly.
What makes a fee unreasonable under Rule 1.5(a)
- Time and labor involved.
- Difficulty and complexity of the legal matter.
- Skill required.
- Interference with other work.
- Customary local fee.
- Amount involved and result obtained.
- Time limits imposed.
- Nature and length of client relationship.
- Lawyer’s experience and reputation.
- Fixed vs. contingent.
Example: Charging $25,000 for a one-day hearing with minimal prep may be unreasonable.
What can and cannot be billed to the client?
- Allowable: Costs like filing fees, long-distance calls, photocopies, expert witnesses.
- Not allowed: Office overhead like rent, staff salaries.
- No Double Billing: Cannot charge two clients for the same time block.
Example: A lawyer flying to a deposition and working on another case during the flight may only charge one client or fairly split the time.
What are the rules for contingent fee agreements?
- Must be in writing, signed by the client.
- Not allowed in: Criminal cases and domestic relations matters involving divorce, custody, or property division.
- Writing must include:
1. Percentage of recovery. 2. Expenses to be deducted. 3. Whether fees are calculated before or after expenses. 4. Final settlement breakdown to client.
- Fee must still be reasonable.
Example: Charging a 40% contingent fee in a case that settles with one letter may be unethical.
Can lawyers split fees with other lawyers?
Yes, but only if:
- The total fee is reasonable.
- Fee is split based on services or joint responsibility.
- The client agrees in writing and knows each lawyer’s share.
Example: Lawyer A handles trial, Lawyer B does research. If they divide the fee proportionally and inform the client in writing, it’s allowed.
Who makes decisions in the representation?
- Client decides:
1. Whether to settle. 2. Plea in a criminal case. 3. Waive jury. 4. Testify. 5. Appeal.
- Lawyer decides:
1. Tactics, strategy, legal procedures.
When is withdrawal mandatory?
- Lawyer must withdraw if:
1. Continued representation violates ethics rules or law. 2. Lawyer is mentally or physically impaired. 3. Client uses lawyer to commit crime or fraud and refuses to stop.
Example: A lawyer representing a client who is forging documents must withedraw
When is withdrawal permitted?
Lawyer may withdraw if:
- Withdrawal won’t harm the client.
- Client insists on criminal or fraudulent conduct.
- Client used lawyer’s services to commit past crime.
- Representation becomes unreasonably difficult.
- Client fails to pay and was warned.
- Lawyer finds the case repugnant.
- Other good cause exists.
Example: If a client refuses to cooperate with discovery, lawyer may seek to withdraw.
What must a lawyer do after withdrawing?
- Comply with court rules.
- Protect client’s interests:
1. Reasonable notice.
2. Time to find another lawyer.
3. Refund unearned fees.
4. Return papers/property.
Example: Lawyer cannot hold case files hostage until paid.
What are a lawyer’s communication duties?
- Keep client reasonably informed (Rule 1.4).
- Respond promptly to information requests.
- Explain matters sufficiently for client to make informed decisions.
- Special care for clients with diminished capacity.
Example: If a plea offer is made in a criminal case, the lawyer must promptly communicate it to the client.
What duties apply when representing a client with diminished capacity?
- Maintain a normal attorney-client relationship as much as possible (Rule 1.14).
- Take protective action only if:
1. Client is at risk of harm. 2. Client cannot act in their own interest.
- May consult family or professionals.
- May seek guardian appointment if necessary, but must minimize intrusion
Example: If an elderly client with dementia wants to sell property at an unfair price, the lawyer can seek protective action.
What if a client insists on action the lawyer finds morally repugnant?
- Lawyer may withdraw if representation would violate deeply held beliefs (Rule 1.16(b)(4)).
- Lawyer should ensure withdrawal doesn’t prejudice the client’s case.
Example: A lawyer uncomfortable defending a client’s racist speech may ask to withdraw.
What if a lawyer is appointed to represent a client they don’t want to?
Court-appointed representation must be accepted unless:
1. It would cause a rule violation.
2. It would be an unreasonable financial burden.
3. Lawyer finds the client or cause so repugnant it impairs representation (Rule 6.2).
Example: A lawyer can’t refuse to represent a criminal defendant just because the charges are unpleasant.
