Client - Lawyer Relationship Flashcards
how is the relationship formed
- person manifests an intent that the lawyer provides legal services and the lawyer agrees
- a person manifests an intent to have the lawyer represent him, the lawyer fail to make clear that he honest want to, and the lawyer knows or should know the prospective client is reasonably relying on the lawyer to provide the services, or
- a tribunal appoints a lawyer
when must a lawyer refuse a case
- client’s motive is harassment
- unsupportable factual or legal position
- lawyer isn’t competent in that area or too busy
- strong personal feelings
- impaired mental or physical condition
what are the duties owed to a prospective client when the relationship never ensues
- protect client’s confidential info, including declining to rep other clients in same or related matter if the info would be harmful
- protect any property given to lawyer
- use reasonable care in giving person an legal advice
what is the ethical obligation to accept unpopular cases
ethical obligation to make legal service available to all. can fulfill by accepting a fair share of unpopular matters or indigent or unpopular clients
how to communicate fees
before or within reasonable time of starting representation, must communicate basis or rate of fee and expenses client will pay for. must communicate any changes
exception - regularly represented client
is a writing required for fee agreements
no
what are the factors for reasonableness of fee
- time and labor required
- novelty and difficulty of questions
- skill needed
4.if work for this client will keep lawyer from doing other work - fee customarily arranged in locality for similar stuff
- amount at stake and results obtained
- time limitations
- nature and length of relationship
- experience, reputation, ability of lawyer
- fixed or contingent
what cannot be billed for
ordinary overhead expenses associated with staffing, equipping, running the office
but may bill for ACTUAL COST of special services like photo copying, long distance calls, deliveries, secretary overtime. plus anything the client agreed to in advance
can you require payment in advance
yes but must give back any unearned portion if fired or withdrawn
is a retainer refundable
no– it’s like a reservation
can a lawyer accept property in return for services
yes as long as it doesn’t involve a proprietary internet in the cause of action or subject of litigation
could be conflict because it’s a business transaction between lawyer and client
can a lawyer make an arrangement that might cut off services in the middle
no
when is a contingent fee prohibited
criminal. cases
domestic relations
but NOT collections
is a writing required for a contingent fee
yes. signed by client and must say
- how fee is to be calculated
- what expenses are to be deducted from recover
- whether deductions will be made before or after the contingent fee is collected
- what expenses client must pay whether she wins or no
how does a contingent fee case end
lawyer must give client a written statement showing outcome, remittance, and how calculated
what if someone don’t pay you
- liens
- retention of funds in trust account (disputed amount)
- arbitration or mediation
when CAN you split fees
- in your firm
- separation and retirement agreements in firm
- lawyers outside firm IF
a) fee is reasonable
b) split is in proportion to services performed by each lawyer or each lawyer assumes joint responsibility and
c) client agrees to the split in writing that says who gets what
what’s the general scope of rep
lawyer must abide by client’s decisions concerning objectives, must consult as to the means by which to pursue objectives.
lawyer can take actions impliedly authorized to carry out rep
can a lawyer limit scope
yes if
- the limitation is reasonable under circumstances
- client gives informed consent
can a lawyer assist client in crime or fraud
no. but may discuss the legal consequences.
when lawyer discovers client expects assistance that violates rule, or if lawyer intends to act contrary to client’s instructions, lawyer must explain why she can’t do what client wants
what if lawyer discovers that a client has begun an illegal course of action that is ongoing
lawyer must not assist in the wrongdoing by drafting docs or advising on hiding it.
in this scenario, must withdraw because continuing rep would violate rules.
sometimes withdrawal is not enough and noisy withdrawal is needed (disaffirming previous work to outsiders)
what decisions are made by client
- settlement offers
- pleas
- waiving jury trial
- testifying
- appealing
what if lawyer and client disagree
try to resolve, if not, lawyer may withdraw or be fired
what kinds of authority does lawyer have
actual, apparent, implied
how does client signal apparent authority
often retaining lawyer is enough.
but for settlements and other client decisions, retention is not enough.
what if lawyer acted without authority
client could ratify it with inaction, but lawyer is still subject to discipline
when does lawyer’s authority end
- matter is complete or lawyer is fired/withdraws
- client dies
- lawyer dies or can’t continue
apparent authority ends when third party knows or should know – lawyer must notify third party
what if client has diminished capacity
lawyer has duty to maintain as normal a relationship as possible – respect and keep them looped in
what actions could lawyer take for diminished capacity client at risk of substantial physical, financial, other harm
could seek appointment of guardian. when taking protective action, lawyer has implied authority to reveal confidential info to extent necessary
what if a seriously diminished client has an emergency
if person faces imminent and irritable harm to health ,safety, finances, lawyer may take legal action on client’s behalf despite not having established a lawyer client relationship
any action should be limited to what is reasonably necessary to maintain status quo or avoid imminent irreparable harm
also don’t seek $$$ for it
how often must lawyer talk to client
must keep client reasonably informed about status of matter and means by which lawyer plans to accomplish goals
if lawyer has to make an immediate decision, lawyer need not consult
what if lawyer makes mistake
must inform a current client if lawyer thinks he materially erred in any rep. once relationship ends though, no worries
when can you withhold info from client
if the client would be likely to react imprudently to an immediate communication. or a court order
but can’t if it’s just that the info would serve lawyer or third person’s interest or convenience
how does relationship end
- client fires lawyer
- lawyer chooses to withdraws
- lawyer must withdraw
- matter ends peaacefully
when must a lawyer withdraw
- disability
- illegality or ethical violation (if continuing would require attorney to violate rule)
when may an attorney withdraw
- any reason if won’t have material adverse effect on client
- client persists in course of action that involves lawyer’s services and lawyer reasonably believes its criminal or fraudulent
- client has used the attorney’s services to commit past fraud or crime
- client’s objective is repugnant
- client won’t pay
- financial hardship
- client won’t cooperate
- other good cause
what are lawyers duties upon termination of rep
- provide client with reasonable notice of withdraw
b. providing client with time to find someone else - refunding attorney’s fees paid in advance and not yet earned
- returning all papers and propers
