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MPRE Annotations > Client-Lawyer Relationship > Flashcards

Client-Lawyer Relationship Flashcards

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1
Q

A lawyer declines a client. She gives no reason why.

A

Proper.

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2
Q

What constitutes “good cause” to reject a court appointment?

A

MRPC 6.2. Good cause to decline representation exists if: (i) the lawyer could not handle the matter competently; (ii) if the representation would result in an improper conflict of interest (as for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client); or (iii) if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust. MRPC 6.2, cmt. 2.

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3
Q

A casual conversation happens between a lawyer and a potential client. If the facts indicate the client reasonably believes the relationship exists but the attorney does not, then…..

A

the relationship DOES exist. The CLIENT’S belief is key!

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4
Q

Duty to reject if …

A

1) violate ethics of law; 2) condition impairs: 2) can be done competently- NO CONFLICT, TO COMPLETION

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5
Q

Client controls ____, lawyer controls ____.

A

Objective, means

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6
Q

If client and lawyer disagree about methods…

A

lawyer can withdraw and client can fire.

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7
Q

Lawyer decisions include:

A

1) procedural tactics; 2) limiting client objectives….manner and scope of cross-examination, choosing a theory of the case

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8
Q

A lawyer can LIMIT scope of representation if….. examples include….

A

1) reasonable; and 2) client gives informed consent… exclude specific means that might otherwise be used to accomplish the client’s objectives, including actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. MRPC 1.2, cmt. 6.

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9
Q

Decisions Made by Client include:

A

a. Scope of representation
b. Advanced authorization
c. Acceptance of settlement
d. Taking an appeal

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10
Q

Decisions made by criminal defendant

A

a. testimony
b. right to trial by jury
c. entry of plea

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11
Q

A client ________ constitutional right to compel his lawyer to assert issues if the lawyer decides not to press those issues as a matter of the lawyer’s professional judgment.

A

DOES NOT have a

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12
Q

A client tells an attorney he can settle for anything over $100K. The client’s house burns down. The next day, the attorney settles thinking it’s the right idea.

A

Improper. Should have consulted with client because of material change since advanced authorization.

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13
Q

If a lawyer agrees to a settlement without the client’s consent and authorization is subject to discipline, may the opposing party enforce the agreement if the lawyer acted with apparent authority?

A

Yes!

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14
Q

A client does not want to take an appeal. The lawyer sees that this decision will be materially adverse to the client. Can the lawyer take it without discipline?

A

No! The decision to take an appeal rests with the client. Restatement (Third) of the Law Governing Lawyers § 22(1); Jones v. Barnes, 463 U.S. 745 (1983).

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15
Q

A lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in her own interest, the lawyer tells the client’s only neighbor she might hurt herself. Improper?

A

No. Lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian to act on behalf of the client. MRPC 1.14(b).

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16
Q

A client is going to gamble all of her money away under the influence of drugs in Atlantic City. The attorney contacts her sister, who she hasn’t spoken to in 10 years in an attempt to support her. Good idea?

A

NO. Information that relates to the representation of a client with diminished capacity is protected by the confidentiality provisions of MRPC 1.6. Thus, generally, unless authorized to do so, the lawyer may not disclose such information. When taking protective action, including seeking the appointment of a guardian, however, the lawyer is impliedly authorized to reveal information about the client, even if the client directs otherwise, but only to the extent reasonably necessary to protect the client’s interests. MRPC 1.14(c). The lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. MRPC 1.14, cmt. 8.

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17
Q

In an emergency when the health, safety, or financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such person even if … OR…. AND….

A

the person is unable to establish a client-lawyer relationship OR to make or express considered judgments about the matter, AND the person or another acting in good faith on that person’s behalf has consulted with the lawyer.

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18
Q

In emergency for person with serious diminished capacity, a lawyer may not act if…

A

the lawyer reasonably believes they do not have a lawyer

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19
Q

If a client begins acting criminally using lawyer’s services, lawyer MUST/MAY withdraw

A

MUST!

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20
Q

At the suggestion of a judge, the attorneys for both parties to a civil action agree to waive additional discovery and to begin the trial immediately. The judge does not know that the client of one of the attorneys has instructed its lawyers in writing not to bring cases to trial without specified discovery, some of which the attorney has not yet accomplished in the case. Although the attorney lacked actual authority to waive discovery here, the attorney had apparent authority, from the point of view of the judge. What can the judge and client do?

A

The judge may hold the client to the immediate trial date. The client, however, may seek a discretionary release from the waiver from the judge, and may be able to obtain damages from the attorney for acting beyond the scope of her specific authority.

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21
Q

A client suggests a course of conduct that would result in such a violation and criminality. Must the lawyer withdraw.

A

No, only if he DEMANDS she do it.

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22
Q

Mandatory Withdrawal under three circumstances

A

1) resulting violation; 2) lawyer’s health; 3) client discharge (unless ordered by court to continue)

23
Q

A lawyer’s mandatory withdrawal is limited if:

A

1) client has severely diminished capacity (should take reasonable protective action); 2) court-appointed client (should help client understand consequences)

24
Q

A lawyer can permissively withdraw if there is no harm to client for:

A

1) no harm to client if ANY REASON

25
Q

A lawyer can permissively withdrawn if there is harm to a client if

A

1) harm to client if REASONABLY believes criminal or fraudulent
2) lawyer learns PREVIOUS services used for crime
3) client insists on repugnant action
4) client refuses to pay
5) client unreasonably financial burden
6) client made representation unreasonably difficult
7) other “good cause”

26
Q

If appointed lawyer wants to withdraw, she must

A

1) obtain permission to withdraw;

2) may be requires to give the court notice to withdraw

27
Q

When terminating a lawyer must do the following EVEN IF UNFAIRLY discharged!

A

1) giving reasonable notice to the client
2) allowing time for employment of other counsel
3) surrendering property to which the client is entitled
4) refunding any advance payment of fee or expense that has not been earned or incurred.

28
Q

A lawyer may retain _____ relating to the representation to the extent permitted by law after discharged

A

papers (as permitted by law)

29
Q

If a lawyer terminates a case but is still owed fees, she is

A

..still entitled to those fees (though she can forfeit them)

30
Q

Courts are split on how to address ____ when a lawyer terminates

A

contingency fees; you can split, do proportion

31
Q

If a client refuses to pay a fee, a lawyer _____ retain papers as a security

A

MAY

32
Q

If a client offers a lawyer an enormous amount of money a lawyer

A

must not accept if its unreasonable

33
Q

Factors that impact “reasonable fee”

A

1) difficult of case
2) other employment precluded
3) nature of relationships
4) expertise
5) amount at issue
6) fee charged in locality

34
Q

Contingency fees allowed all cases EXCEPT _____ and ___ and ONLY IF ____ and ___.

A
  1. domestic/criminal; 2. reasonable/in writing
35
Q

A divorced couple seeks to to recover post-judgment balances due under support, alimony or other financial orders. Can the lawyer charge contingency?

A

Yes.

36
Q

A contingency require two writings:

A

i) Signature of the client;
ii) Calculation methodology of the fee; and
iii) Details of the calculation for deductions for expenses, including whether such expenses are to be deducted before or after the contingency fee is calculated.

AND

The agreement must clearly set out any expenses for which the client will be liable even though the client is not the prevailing party. At the conclusion of a contingent fee matter, the lawyer must provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. MRPC 1.5(c).

37
Q

State X says that a lawyer can only take 25% of the fee won at trial. The lawyer charges 26%. State X okay?

A

Yes! lawyer subject to discipline. Applicable local law may further limit contingency fee arrangements, such as by imposing a ceiling on the percentage allowed. MRPC 1.5, cmt. 3.

38
Q

Does a lawyer who is discharged have to return a retainer fee in dispute?

A

No. Only if the agreement stipulated that was OKAY.

39
Q

A client can pay a lawyer in property if

A

it complies with 1) business transaction requirements and 2) proprietary interest in causes of action requirements

40
Q

A lawyer tells a client they can only represent him up to one appeal because he can’t afford anymore. She explains how and why and impact. The client consents.

A

Proper. A lawyer may not enter into an agreement under which services are to be provided only up to a stated amount when it is foreseeable that more extensive services will likely be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay.

41
Q

Restrictions on sharing fees with lawyers outside of firm (never non-lawyers)

A
  1. NOT within the same firm 2. OR non-lawyers UNLESS - i) The fee is in proportion to the services rendered by each lawyer or joint responsibility is assumed for the representation;
    ii) The client agrees in writing to the fee splitting arrangement; and
    iii) The total fee charged must be reasonable (such that a client is not charged more just because additional lawyers are working on the case).
42
Q

A state has a minimum fee schedule. A lawyer refutes it.

A

No sanctions. Minimum fee schedules once imposed on lawyers by state bars are no longer lawful because their anti-competitive nature violates the Sherman Act, and are thus not enforceable. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).

43
Q

Must a lawyer received consent in writing for changing a fee arrangement in the middle of representation?

A

No. Minimum fee schedules once imposed on lawyers by state bars are no longer lawful because their anti-competitive nature violates the Sherman Act, and are thus not enforceable. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).

44
Q

A lawyer can increase fees if

A

the client was informed and agreed initially

45
Q

To enforce a modified fee arrangement, a lawyer

A

Since a client-lawyer relationship is in part a fiduciary relationship, a modification of the fee arrangement beyond a reasonable time after the beginning of the representation may be avoided by a client unless the lawyer is able to establish that the modified contract is fair and reasonable to the client. Restatement (Third) of the Law Governing Lawyers § 18(a). In addition, some jurisdictions may require that the modification be supported by consideration.

46
Q

A client refuses to pay the fees and claims she never signed any agreement. Is it enforceable?

A

While it is advisable to provide the client with at least a memorandum of the lawyer’s fee in order to reduce the possibility of a misunderstanding, the Model Rules do not specifically require that the lawyer’s communication regarding fees and expenses be in written form, with the exception of a contingency fee (see 2.c., Writing requirement, supra). MRPC 1.5(b), cmt. 2.

47
Q

a lawyer serves two key roles to a client

A

1) fiduciary- A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.; 2) agent -in legal terminology, is a person who has been legally empowered to act on behalf of another person or an entity

48
Q

You can limit the scope of representation if

A

1) reasonable; 2) client provides informed consent

49
Q

A client’s general counsel instructs you to go to trial to set precedent even if settlement is better and there is no law.

A

Under MRPC 3.1, it is not frivolous to begin a lawsuit or assert a defense if there is a good faith argument that will support the prosecution or defense.

50
Q

Attorney represents two people. They become adverse. Can she represent one in substantially related matter.

A

No. Under MRPC 1.16(a)(1), the attorney must seek judicial permission to withdraw from the representation to avoid violating MRPC 1.

51
Q

If a lawyer becomes ill and needs to transfer client to another, she can do so if

A

gets WRITTEN CONSENT FROM ALL CLIENTS

52
Q

A disqualified lawyer may receive a partnership share established by prior independent agreement, but she may not…

A

…receive compensation that is directly related to the matter from which she has been disqualified.

53
Q

Does flyering in your office to promote a restaurant that refers you violate the rules?

A

YES. If its ANYTHING of value! MRPC 7.2(b) prohibits a lawyer from GIVING ANYTHING OF VALUE to a person for recommending the lawyer’s services. Subsection (4) of that rule provides for an exception for reciprocal referral agreements with other lawyers or with non-lawyer professionals. However, even if the restaurant owner were considered a “professional” under this exception, this is not a mere reciprocal referral agreement. A reciprocal referral agreement would only require each professional to refer clients to the other professional. Here, the attorney’s display of additional advertising is an additional exchange of value that goes beyond a mere referral.

54
Q

A lawyer deposits cash from her piggy bank into the client trust to pay the bank fees and tax.

A

A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on the account. MRPC 1.15(b).

MPRE Annotations (11 decks)

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