Client-Lawyer Relationship

Question 1

When are contract modifications after beginning the representation with a client enforceable?

Answer 1

If they are fair and reasonable to the client

Question 2

What are the three ways to begin a client-lawyer relationship?

Answer 2

1) Mutual agreement
2) Implied assent and reasonable reliance (e.g. client wants you to represent them and you fail to clearly decline and they rely) Reasonable reliance is a question of fact.
3) Court appointment

Question 3

If you accept non-cash payment, what applies?

Answer 3

The rules for business transaction with a client. (Must be fair and reasonable to client, terms written and understandable to client, advise client in writing to get independent counsel, get client consent + SIGNED writing)

Question 4

When is a written agreement required for fees?

Answer 4

Required for contingency fees (preferred for other types of arrangements)

Question 5

Can you charge client for overhead?

Answer 5

No, can’t charge for general overhead/staffing, but can charge or special services like coping and long distance calls, Westlaw, third parties - for these services must either charge the actual amounts or a reasonable fee the client has agreed to in advance.

The bill must clearly show how the amount due is computed

Question 6

Can you double bill time? (e.g. you’re on a plane billing travel time for one client and working on another client’s stuff)

Answer 6

No

Question 7

What is the difference in a true retainer and a retainer?

Answer 7

A regular retainer is not yours until it is earned and if the relationship terminates, you must return any unearned portion. This is the case even if the contract says the retainer is non-refundable

A true retainer is a payment solely to ensure availability not to pay for the work itself. May keep a true retainer if the relationship terminates or if you are fired as long as the retainer is reasonable and you have not violated the retainer agreement

Question 8

When are contingency fees not allowed?

Answer 8

1) Criminal cases

2) Domestic relations cases (but are allowed if the rep is only for collection of past due amounts)

Question 9

What are the documentation requirements for contingency fees?

Answer 9

Must be in writing signed by the client and disclose who is paying expenses, how fee is calculated, and which expenses will be deducted and when.

Must also provide a written statement at the conclusion of the case that details where the $ is going

Question 10

Contingency fees might not be appropriate in all cases.

Answer 10

Fee still has to be reasonable on a risk adjusted basis. for example, if you know you will settle the case in a few hours, it might not be ethical to charge 30% and you should instead charge by the hour

Question 11

What are the three requirements for splitting attorney’s fees across >1 firm?

Answer 11

1) Both lawyers must either participate (and split according to work performed) or both assume joint responsibility (and split however they want)
2) Client consent to arrangement and shares of fees must be confirmed in writing
3) Total fee must be reasonable

Question 12

Who decides the scope of the representation?

Answer 12

The client decides, but the attorney can limit if:

• the limitation is reasonable under the circumstances and
• client gives informed consent

Question 13

What decisions does the client make?

Answer 13

Whether to settle, enter a plea, waive jury trial, if client will testify, whether to appeal, . Can’t craft a contingency fee agreement to restrict the client’s ability to make these decisions.

Question 14

What decisions does the lawyer make?

Answer 14

Lawyer makes strategic decisions but must consult with the client and if client objects, must find a mutually acceptable solution or withdraw.

Lawyers usually defer to clients for questions of expense and tactics that might concern third persons

Question 15

When can the lawyer bind the client?

Answer 15

1) with actual authority (express or implied from client). Atty reasonably believes she is authorized to act based on dealings with client. Atty also has actual authority to take actions she reasonably believes are requires by a law or court order
2) Apparent authority (if the third party/court reasonably believes based on the CLIENT’s actions that the lawyer has authority-simple act of hiring someone as lawyer might be enough but would not be enough for a client settlement because everyone knows clients must approve settlements, so no reasonable reliance unless client communicated the lawyer had authority. Client can also ratify an action after the fact and be bound accordingly)

Question 16

If you have a relationship with a vulnerable client, what are your responsibilities?

Answer 16

• maintain normal relationship as possible (always give the client attention and respect and keep them updated even if a guardian has been appointed)
• If client is at risk of substantial harm (physical financial or otherwise), can take protective action like consulting with people/entities who can protect the client (then impliedly authorized to disclose confidential info even if client tells you not to. But only share what is necessary)

Question 17

What might you do when taking protective action for a vulnerable client?

Answer 17

1) Consult family members

2) seek appointment of a guardian

Question 18

What kind of info must you communicate with the client?

Answer 18

• Case status updates, tactics updates (unless immediate decision is required)
• Settlement offers or plea bargain offers (unless they have already instructed you to decline/accept certain offers or given you authority)
• Pass along reasonable requests for info
• Anything that requires the client’s informed consent

Question 19

What are the duties owed to prospective clients?

Answer 19

1) Protect CI which includes declining to represent other clients in the same or related matter if CI would harm that client
2) Protect any property the prospective client has given to the lawyer
3) use reasonable care in giving legal advice

Question 20

What are the 3 conditions when a lawyer must withdraw?

Answer 20

1) Fired
2) physical or mental condition impairing the patty’s ability to represent the client
3) Representation requires a violation of the RPC (or other law)

Question 21

When MAY a atty withdraw?

Answer 21

• For any reason if there is not a material adverse affect on the client or if client consents

Even if there is an adverse effect on the client the below work if the circumstances justify the harm to the client’s interests:

• reasonable belief client is doing something criminal or fraudulent involving the lawyer’s services (if the conduct involves assistance from he attorney, must withdraw because assisting in crime/fraud violates the MPC)
• Client used lawyer’s services in a past crime or fraud
• Client is repugnant or against lawyer’s beliefs
• Client makes representation unreasonably difficult (e.g. lying, silent treatment, won’t provide discovery, etc)
• Client substantially fails to fulfill an obligation to the attorney and has been WARNED about withdrawal
• Unreasonable financial burden on atty
• Any other good cause

Question 22

Client and I have just parted ways what do I have to do?

Answer 22

• Provide reasonable notice to the client, allow them time to find a new attorney and otherwise protect the client’s interests
• Refund unearned advance payments
• Return client’s file unless permitted by law to retain (e.g. for a lien)

Question 23

Client relationship terminated midway through a contingency fee arrangement. How much am I paid?

Answer 23

The reasonable value of services (quantum meriut). Regardless if fired or if atty fired client. If relationship ended shortly after beginning the case, the court may find that you forfeited your fee

Question 24

What kind of relationship is the client lawyer relationship?

Answer 24

It is a contractual relationship. the terms are generally implied by custom but can be varied by mutual agreement most of the time. Contract wlll be construed against the lawyer and scrutinized for fairness

Question 25

A lawyer must decline a representation if it violates the RPC. What are some situations that would violate the RPC and a lawyer must decline employment?

Answer 25

1) Client’s motive is harassment/embarrass/delay/burden someone else (could be plaintiff or defense)
2) The position is factually or legally frivolous
3) Lawyer is too busy or too inexperienced to handle the matter competently
4) Personal feelings are so strong, lawyer would be unable to represent the client effectively
5) Lawyer’s mental or physical condition would materially impair ability to represent the client

Question 26

A lawyer has an ethical obligation to accept his fair share of unpopular cases or indigent or unpopular clients

Answer 26

This is part of the ethical obligation to make legal service available to all who need it

Question 27

How do courts interpret fee arrangements with clients?

Answer 27

In theory the bargaining between attorney and client over fee setting should be at arms length, but in practice many clients are inexperienced with attorneys’ fees, so courts given the benefit of the doubt to the client

Question 28

When must a lawyer communicate the fee arrangement? Is a writing required?

Answer 28

Before or within a reasonable time after the start of the representation, must communicate the basis or rate for charging fees and the expenses the client must pay. (unless the client is a regular and knows the drill)

Writing not required except for contingency fees.

Lawyer must update the client if anything changes regarding the fee arrangement (or the estimate of total cost)

Question 29

I charge an unreasonably high fee and incur unreasonably high expenses that I pass on to the client. What is likely to happen?

Answer 29

The court is unlikely to enforce the fee and you are subject to professional discipline

Question 30

Lawyers can’t create fee agreements that are likely to leave their client without a lawyer in the middle of a representation. What should a lawyer do to address this concern in making a fee arrangement?

Answer 30

Lawyer should not make a fee arrangement that could curtail services in the middle of a relationship and thus put the client at a bargaining disadvantage.

Question 31

Describe the credit arrangements that a lawyer might make available for a client to pay their fees?

Answer 31

• Client can pay by credit card
• Lawyer may participate in a bar association that enables clients to finance fees through bank loans
• Lawyer may also take an interest-bearing promissory note from a client to secure the payment of fees
  When permitted by local law, lawyer may take a statutory, common law, or contractual attorney’s lien to secure the payment of a fee

Question 32

In contingency fee arrangements what can the fee be contingent on?

Answer 32

Anything (not just the amount of the recovery) as long as it’s not a criminal or domestic relations case.

Some states have set statutory caps on the % of a recovery that a lawyer may take on contingency for certain types of cases

Question 33

Are contingency fees allowed for collecting money that is past due under an alimony or support decree?

Answer 33

Yes

Question 34

What must be included in a contingency fee agreement? at the end of a contingent fee case?

Answer 34

1) the CLIENT’s SIGNATURE
2) how the fee is to be calculated
3) What litigation or other expense will be deducted from the recovery (and if the deduction will happen before or after the attorney takes their cut)
4) what expenses the client must pay regardless if they win the case
@ end) written statement showing outcome of case, the remittance to the client, and how the remittance was calculated

Question 35

I’m in a fee dispute with my client, what may I not do?

Answer 35

1) may not employ collection methods forbidden by law
2) may not improperly use confidential information
3) may not harass the client

Question 36

What are some possible remedies in a fee dispute with a client?

Answer 36

1) attorneys lien on proceeds of case if allowed by state or created by agreement
2) attorney’s lien on documents or other property held by the attorney
3) Retention of funds in a client trust account
4) Arbitration or mediation (not required by recommended)

Question 37

When can a lawyer split fees with lawyers associated with the firm?

Answer 37

1) May always split fees with other attorneys in the firm

2) May make payments to former partners and associated under a separation or retirement agreement

Question 38

Pure referral fees are not allowed. What are alternatives?

Answer 38

But consider the joint responsibility fee split or a reciprocal referral agreement

Question 39

What are the rules about coaching clients to commit a crime or fraud?

Answer 39

A lawyer may not advise a client to engage in criminal or fraudulent activity or assist them in doing so BUT may discuss the legal consequences of any proposed course of conduct.
A lawyer may also counsel/assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law (violate statute for a test case)

Question 40

I’m about to disregard the client’s wishes and refuse to advise them on how to commit a crime or fraud. What do I have to do?

Answer 40

• Explain why you cannot do what the client expects

Question 41

The client is insisting on unethical assistance, what do I need to do? Will I be an accomplice if they end up committing this crime after all?

Answer 41

Need to withdraw from the representation.

You will not be an accomplice if the client uses the lawyer’s (ethically given) advice to commit the crime

Question 42

I have discovered that my client is perpetrating a fraud, what are my responsibilities?

Answer 42

• Cannot assist in wrongdoing (draft fraudulent documents) or suggest how the wrongdoing can be concealed
• Must withdraw because continuing would constitute a violation of the RPC
• May need to make a noisy withdrawal and disaffirm prior opinions, documents, affirmations that the client is using to carry out the wrongdoing (even if it puts the client’s victim on guard)

Question 43

A lawyer acted without authority in binding the client and the client subsequently ratified. Is the lawyer still liable to the client for civil damages? Is the lawyer still subject to discipline?

Answer 43

No civil suit

Yes, subject to discipline

Question 44

What does a lawyer’s actual authority to represent a client end?

When does apparent authority end?

Answer 44

Lawyer loses actual authority when:

1) Fired, matter is complete, lawyer withdraws
2) client dies
3) lawyer dies or is otherwise unable to continue the representation (disbarment or disability)

Apparent authority ends when the third party knows or should know or infer that lawyer lacks actual authority.

Question 45

I have just lost actual authority to represent/bind my client. What do I need to do now?

Answer 45

• I can’t purport to have authority

- I must notify third parties who are relying on the continued existence of my authority

Question 46

Lawyer sees a person with seriously diminished capacity facing imminent and irreparable harm to health/safety/finances, what can lawyer do?

Answer 46

Take legal action on their behalf even if the vulnerable person is unable to establish a client-lawyer relationship or to make considered judgments about the matter BUT

• cannot act until the person or someone acting on their behalf has consulted with the lawyer
• should not act unless the lawyer reasonably believes the person has no other representatives available
• actions taken should be limited to maintaining the status quo or avoiding immediate harm

Question 47

When assisting someone in an emergency situation, what duties are owed to the client?

Answer 47

• same duties as to a regular client
• in an emergency, confidences may be breached only as necessary to accomplish the intended protective action
• Must disclose the nature of the relationship to any tribunal or counsel involved in the matter
• must take steps to regularize the relationship ASAP

Question 48

Can a lawyer seek payment for services in an emergency situation?

Answer 48

No (at least not normally)

Question 49

What does informed consent mean?

Answer 49

the client agrees to the proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives

Question 50

I’ve discovered I messed something up, do I need to tell the client.

Answer 50

Must tell the client IF:
- The client relationship has not ended AND a disinterested lawyer would conclude EITHER that A) the error is reasonably likely to harm or prejudice the client or B) the error is of a nature that the client might reasonably consider firing the lawyer

Question 51

A client reasonably requests information. What are the lawyer’s responsibilities?

Answer 51

1) provide a prompt response with the requested info

2) if the requested info is unavailable, acknowledge request and tell the client when the info will be available

Question 52

Under what circumstances can I delay transmission of information to my client?

Answer 52

A) If the client would be likely to react imprudently to an immediate communication, but cannot withhold the information to serve the lawyer’s or a third persons interest or convenience
Or
B) if a court rule or order forbids a lawyer from sharing certain information with a client

Question 53

When can a client avoid a contract (or alteration of a contract) with a lawyer (could be about fees, which lawyers can be involved, etc)?

Answer 53

1) Contract was not made at the outset (unless the lawyer shows the contract and circumstances were fair and reasonable to the client)
2) Contract was made after the work was completed if the client was not informed of facts needed to evaluate the appropriateness of the benefits conferred on the lawyer by the contract

Question 54

What are the three general ways that a lawyer-client relationship can end before the conclusion of the matter?

Answer 54

1) Client fires attorney
2) Lawyer must withdraw (and does)
3) Lawyer may withdraw (and does)

Question 55

When can a client fire an attorney?

Answer 55

At will with or without cause. Even if the client fires the attorney for no reason, the client will not be liable for breach of contract regardless what the contract says.

Most courts require permission to substitute attorneys and may deny if the substitution will delay or disrupt the proceedings

Question 56

How much can an attorney recover under quantum meruit after being fired?

Answer 56

No more than was provided under the contract.

For contingent fee cases, the lawyer is not entitled to the quantum meruit recovery until the contingency event occurs

Question 57

If a trial judge denies an motion to withdraw, and the attorney withdraws anyway, is the attorney subject to discipline?

Answer 57

YEs, when a lawyer is ordered by a tribunal to continue representing a client, the lawyer must continue the representation regardless if he has good cause for withdrawing

Question 58

A lawyer with direct supervisory authority over a non lawyer has what responsibility?

Answer 58

Must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. (Supervision is required!)

Question 59

What kind of action are most legal malpractice cases?

Answer 59

Tort cases, so evaluate questions about civil malpractice claims using the elements of a tort

Question 60

You know you are conflicted and decline to represent a potential client because of that conflict. Do you have to warn against the impending SOL to avoid legal malpractice to the potential client?

Answer 60

No duty to warn about SOL if that warning would be disloyal to the existing client. But generally there is a duty of reasonable care which would require a warning about the SOL