Forming and Terminating the Client-Lawyer Relationship, Clients with Diminished Capacity - June 8 & 13

Question 1

May a lawyer offer a free initial consultation? (Lerman)

Answer 1

Yes. (266)

Question 2

What should a lawyer explain in the initial meeting with a client? (Lerman)

Answer 2

In the initial meeting, a lawyer should explain the confidential nature of the lawyer-client relationship and the basis on which the lawyer’s fee is determined. A lawyer also should check for conflicts of interest with his other clients before allowing the prospective client to reveal confidential information. (266)

Question 3

Is a lawyer permitted to accept legal work that requires knowledge of an area of law in which the lawyer has no experience? (Lerman)

Answer 3

Yes, if the lawyer compensates for inexperience through study or affiliation with another lawyer. Rule 1.1, which is discussed later in this chapter, requires lawyers to provide competent representation. (267)

Question 4

May a lawyer who does extensive self-education to prepare to represent a client in a new field bill a client for that study time? (Lerman)

Answer 4

Lawyers who bill by the hour routinely charge for time spent on research, but a lawyer may be subject to discipline if the lawyer bills
the client for spending an unreasonable amount of time on research, especially if the research does not lead to worthwhile progress in the matter. (269)

Question 5

To form a lawyer-client relationship, must the client sign an agreement or pay a fee? (Lerman)

Answer 5

No. An agreement to pay a fee is not a necessary aspect of a lawyer-client
relationship. (273)

Question 6

What are the elements of a legal malpractice claim? (Lerman)

Answer 6

In a legal malpractice action of the type involved here, four elements must be shown: (1) that an attorney-client relationship existed; (2) that defendant acted negligently or in breach of contract; (3) that such acts were the proximate cause of the plaintiffs’ damages; (4) that but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim. . . . (279)

Question 7

Is a client-lawyer relationship generally formed by mutual agreement of both the lawyer and the client? (Q)

Answer 7

Yes. In general, a client-lawyer relationship is formed by mutual agreement of both the lawyer and the client. More specifically, a client-lawyer relationship is formed if:

the client indicates to the lawyer that the client intends to engage the lawyer’s legal services, and
the lawyer indicates to the client that the lawyer will provide those services.

Question 8

In forming a client-lawyer relationship, may the client’s intent to engage the lawyer’s services be either express or implied? (Q)

Answer 8

Yes. In forming a client-lawyer relationship, the client’s intent to engage the lawyer may be either express, e.g., a verbal or written request for representation, or implied, e.g., sending the lawyer documents or asking the lawyer a legal question in a context that indicates the client’s intent. In general, the client’s intent may be inferred from the surrounding circumstances.

Question 9

In forming a client-lawyer relationship, may the lawyer’s agreement to provide legal services to the client be either express or implied? (Q)

Answer 9

Yes. In forming a client-lawyer relationship, the lawyer’s agreement to provide legal services may be either express, e.g., a verbal or written assent to representation, or implied, e.g., performing work for a client in a context that indicates the lawyer’s intent. In general, the lawyer’s intent may be inferred from the surrounding circumstances.

Question 10

May a lawyer be deemed to represent a client without the lawyer’s express agreement if the lawyer knows, or should have known, that the client reasonably relied on the lawyer to provide legal assistance? (Q)

Answer 10

Yes. If a lawyer does not clearly decline a prospective client’s request to provide legal services, the lawyer may still be deemed to represent the client if the lawyer knows, or should have known, that the client reasonably relied on the lawyer to provide legal assistance. The client-lawyer relationship might be imputed based on a theory of the lawyer’s implied assent to representation or on a theory of promissory estoppel that will bind the lawyer. In many instances, the courts take the view that the lawyer has a better understanding than the client of what representation means, and thus the lawyer might effectively have a greater burden than the client to avoid the unintentional formation of a relationship.

Question 11

Under the Model Rules of Professional Conduct (MRPC), what is a prospective client? (Q)

Answer 11

Under the MRPC, a prospective client is a person who consults with a lawyer about the possibility of entering a client-lawyer relationship in connection with a matter. A lawyer owes certain ethical duties to a prospective client even if that person never actually becomes the lawyer’s client.

Question 12

Standing alone, is a prospective client’s unilateral belief that a client-lawyer relationship exists sufficient to form a client-lawyer relationship? (Q)

Answer 12

No. Although a lawyer’s consent to a representation may be inferred from the surrounding circumstances, a prospective client’s unilateral belief, standing alone, is not enough to form a client-lawyer relationship. At a minimum, the prospective client’s belief that a client-lawyer relationship exists must be a reasonable one under the circumstances.

Question 13

May a client-lawyer relationship be based solely on a prospective client’s request for, or receipt of, nonlegal advice or services from a lawyer? (Q)

Answer 13

No. A client-lawyer relationship may not be based solely on a prospective client’s request for, or receipt of, nonlegal advice or services from a lawyer. The basis for the client-lawyer relationship must be the provision of legal services, not nonlegal services. Accordingly, a client-lawyer relationship is not formed merely because a prospective client seeks or receives nonlegal advice or services from a lawyer who does not already represent the client. However, if a client intends to request legal services, the formation of the client-lawyer relationship is not affected if the client also intends to request nonlegal services.

Question 14

Is payment by the client required to form a client-lawyer relationship? (Q)

Answer 14

No. The formation of a client-lawyer relationship requires neither payment by the client nor an agreement to pay. All that is generally required to form a client-lawyer relationship is a mutual agreement between the lawyer and the client, in which the client indicates the client’s intent to engage the lawyer’s legal services, and the lawyer indicates the lawyer’s intent to provide those services.

Question 15

In general, is a written contract or other agreement required to form a client-lawyer relationship? (Q)

Answer 15

No. Although lawyers and clients often do enter into written agreements regarding the representation, a writing is generally not required to form a client-lawyer relationship. However, there may be specific situations in which the applicable law or rules of professional responsibility will require a written agreement, depending on the jurisdiction. Thus, a lawyer should take account of this possibility in agreeing to a representation.

Question 16

A man was in an automobile accident. The man attended a meeting with a lawyer at which the man asked the lawyer for an opinion about whether the man’s legal claim was worth pursuing. The lawyer briefly stated that the man had a better-than-average chance of prevailing in a lawsuit. The man thanked the lawyer, said that he would think about what he wanted to do, and left the meeting.

At this point, was the man a client of the lawyer?

Answer 16

No. The man was not a client. A client-lawyer relationship does not begin until a person has asked a lawyer to provide legal services, and the lawyer has agreed. The request and acceptance may be express or implied from the circumstances. In particular, a lawyer may be deemed to accept a representation if the lawyer knows or should have known that a person reasonably relied on the lawyer to provide legal assistance. However, merely requesting an opinion about a claim does not by itself form a client-lawyer relationship.

Here, the man met the lawyer and asked the lawyer’s opinion about his claim, but the man did not request representation, and the lawyer did not agree to provide it. The man said only that he would think about what to do, which indicated that he had not decided either to request representation or to rely on the lawyer’s advice. Thus, the man was not the lawyer’s client.

Question 17

Once a client-lawyer relationship is formed, does the lawyer become a fiduciary agent of the client? (Q)

Answer 17

Yes. Once a client-lawyer relationship is formed, the lawyer becomes a fiduciary agent of the client. The lawyer then assumes fiduciary and agency-related duties (such as competence, confidentiality, diligence, honesty, and loyalty in the handling of the client’s affairs), as well as all other duties imposed by applicable law and the rules of professional conduct.

Question 18

In settings other than court appointments, is a lawyer generally free to accept or reject a prospective client? (Q)

Answer 18

Yes. Aside from court-appointed clients, a lawyer is generally free to accept or reject an offer or request to represent a client. However, this freedom may be restricted in some situations by applicable law, e.g., anti-discrimination laws.

Question 19

Under what circumstances is a lawyer required to decline to represent a prospective client? (Q)

Answer 19

A lawyer must decline to represent a prospective client if:

the lawyer is not competent in the necessary field of law, unless he can become competent without undue hardship or expense to the client, or he associates with a competent lawyer;
the lawyer knows the client seeks to engage in criminal or fraudulent conduct, except that the lawyer may discuss the legal consequences of any conduct with a client or assist the client in assessing the law;
the lawyer knows the representation will cause a conflict of interest or other violation of a rule of professional conduct;
the representation will require the lawyer knowingly to assert a frivolous claim or defense;
the lawyer’s physical or mental condition materially impairs his ability to represent the client; or
a substantial purpose of the representation is to embarrass, delay, harass, or burden a third person.

Question 20

In general, is a lawyer bound by the client’s determination of the objectives of the lawyer’s representation? (Q)

Answer 20

Yes. In general, a lawyer must abide by the client’s determination of the objectives of the lawyer’s representation. In other words, the client generally has the final say as to the goals to be sought through the representation.

Question 21

What is the definition of informed consent under the MRPC? (Q)

Answer 21

Under the MRPC, informed consent means consent by a client to a proposed course of action after the lawyer has provided adequate information and explanation to the client regarding:

the facts and circumstances underlying the need for consent,
the risks of the proposed course of action, and
the reasonable alternatives to the proposed course of action.
The exact communication necessary to obtain informed consent may depend on the situation. In any case, however, the lawyer must make reasonable efforts to ensure that the client has information that is reasonably adequate to make an informed decision.

Question 22

May a lawyer place reasonable limits on the scope of the services the lawyer will provide for the client during the representation? (Q)

Answer 22

Yes. A lawyer may limit the scope of services provided to a client, as long as:

the limits are reasonable in light of the circumstances, and
the client gives informed consent.
These limitations might take a variety of forms, including the lawyer agreeing to: (1) represent a client only in specific areas of law; (2) engage in one activity, but not others, on behalf of a client; or (3) provide a limited amount of advice in a single short conversation. These types of limitations are reasonable and permissible as long as the lawyer can provide the client with sufficient advice or representation within the specified parameters. It is common to lay out the scope of a representation in an engagement letter, which allows the lawyer and client an opportunity to specify the terms of the representation in advance.

Question 23

Is a lawyer required to reasonably consult with the client about the means of achieving the goals of the representation? (Q)

Answer 23

Yes. A lawyer must reasonably consult with the client about the means of achieving the client’s goals or objectives in the representation. This might require either discussing the lawyer’s actions in advance or informing the client of actions already taken by the lawyer.

Question 24

If a lawyer and client disagree about the means by which to pursue the client’s objectives, do the MRPC specify how that disagreement should be resolved? (Q)

Answer 24

No. The MRPC do not specify how to resolve a disagreement between the lawyer and the client over the means by which to pursue the client’s objectives. This is because the types and contexts of potential disagreements are too varied to be resolved by a single rule. Depending on the circumstances, other sources of law might be implicated in resolving these types of disputes. If the lawyer and client cannot resolve a fundamental disagreement, the lawyer may withdraw from the representation.

Question 25

In seeking to carry out a client’s objectives, must the lawyer obtain express authorization from the client for each of the lawyer’s actions in the course of the representation? (Q)

Answer 25

No. In seeking to carry out a client’s objectives, the lawyer is not required to obtain express authorization from the client for each of the lawyer’s actions. The lawyer may take an action on behalf of the client without advance consultation if the action is impliedly authorized to carry out the representation (e.g., filing pleadings or determining which witnesses to call in a trial).

Question 26

Does a lawyer’s representation of a client constitute an endorsement of a client’s opinions, beliefs, or actions? (Q)

Answer 26

No. Regardless of whether the client-lawyer relationship is formed by agreement or by appointment, a lawyer’s representation of a client does not constitute the lawyer’s endorsement of the client’s opinions, beliefs, or actions. This rule recognizes that someone should not be denied effective legal representation merely because he cannot afford a lawyer or because he has an unpopular or controversial cause.

Question 27

A lawyer was defending a client in a tax dispute with the Internal Revenue Service (IRS). The issue in the dispute was the method of calculating a particular tax credit for the most recent tax year. The lawyer told the client that they might also be able to use the dispute not only to resolve the amount of the credit, but also to challenge the legality of certain investigative methods used by the IRS in the matter. The client stated that he had no interest in addressing the IRS’s investigative methods. Instead, the client merely wanted to resolve the amount of the credit as quickly and inexpensively as possible.

May the lawyer pursue the issues regarding the IRS’s investigative methods over the client’s objections? (Q)

Answer 27

No. The lawyer may not pursue the issue of the IRS’s investigative methods over the client’s objections. A lawyer must defer to the client regarding the objectives of the lawyer’s representation. Although the lawyer may have some latitude regarding the means of achieving the client’s objectives, the objectives themselves are for the client to decide.

Here, the client’s objective was to determine the amount of the tax credit as quickly and inexpensively as possible. The client told the lawyer that he had no interest in pursuing the issue of investigative practices. In other words, challenging those practices was not one of the client’s objectives. Thus, the client clearly outlined the objectives of the representation, and the lawyer is bound by the client’s decision on this point.

Question 28

A business retained a lawyer with employment-law expertise to represent the business in employment-related disputes. The lawyer sent the business an engagement letter, which stated that the lawyer had been retained to provide advice on employment-law matters only, and that the business would be best served by seeking other counsel in other areas of law. The business’s authorized agent approved and signed the letter with a full understanding of the lawyer’s limitations and the benefits of seeking specialized counsel in other areas. The business later sent the lawyer an employment-related dispute that also involved questions of securities law and asked the lawyer to handle the entire matter. The lawyer rejected the securities work and reminded the business that the scope of the lawyer’s representation was limited to employment law.

Was the lawyer permitted to reject the securities work? (Q)

Answer 28

Yes. The lawyer was permitted to reject the work. A lawyer may limit the scope of her representation of a client as long as (1) the limitation is reasonable in light of the circumstances, and (2) the client provides informed consent. It is generally reasonable for a lawyer to limit her representation by agreeing to represent a client only in a specific area of law, because, for example, the lawyer may have expertise in that area and not in other areas.

Here, the lawyer had expertise in employment law and thus reasonably limited the scope of the representation to employment-law matters. The lawyer’s engagement letter set forth the limitation, and the business gave informed consent to this limitation when it retained the lawyer with an understanding of the lawyer’s limitations. The securities work fell outside the scope of this limited representation. Thus, the lawyer could reject the work.

Question 29

May a client authorize a lawyer to take specified actions on the client’s behalf without needing to consult the client further? (Q)

Answer 29

Yes. A client may authorize the lawyer to take particular actions on the client’s behalf without the need for further consultation with the client. A lawyer may rely on this authorization unless there is a material change in circumstances. However, the client may revoke this authorization at any time.

Question 30

Does a client have the authority to decide whether to settle a civil matter? (Q)

Answer 30

Yes. In a civil matter, the client has the authority to decide whether to settle. The lawyer is bound by the client’s decision.

Question 31

In a criminal matter, does a client have final decision-making authority regarding what plea to enter, whether to waive a jury trial, and whether the client will testify at trial? (Q)

Answer 31

Yes. In a criminal matter, the client has final authority to decide:

what plea to enter (e.g., guilty or not guilty);
whether to waive a jury trial; and
whether the client will testify at trial.

The client’s authority in this setting may arise not only from the rules of professional conduct, but also from the client’s constitutional rights, such as the right to control the objectives of a criminal defense.

Question 32

A lawyer was representing a client in a criminal case. The client wanted to testify on his own behalf at trial. The lawyer strongly advised the client against testifying because under the rules of evidence, the client’s prior bad acts could then be disclosed to the jury. At trial, despite the client’s wishes, the lawyer refused to call the client to testify. The lawyer later explained to the client that by hiring the lawyer, the client had agreed to allow the lawyer to make decisions regarding trial strategy, including whether to call the client as a witness.

Is the lawyer correct? (Q)

Answer 32

No. The lawyer is not correct that the lawyer could decide whether the client would testify. A lawyer generally must abide by a client’s decisions regarding the objectives of the representation and must discuss with the client the means by which those objectives are pursued. Although a lawyer is implicitly authorized to take some actions on behalf of a client without advance consultation, there are certain decisions as to which the client has final authority. In a criminal case, one decision on which the client has final authority is whether the client will testify at trial.

In this criminal case, the client made clear his desire to testify at trial. The lawyer was required to defer to the client’s decision. Thus, the lawyer’s contrary claim is not correct.

Question 33

Does a lawyer have the authority to make decisions in the course of representing a client that the lawyer reasonably believes are required by law or by a tribunal? (Q)

Answer 33

Yes. A lawyer has the authority to make decisions in the course of representing a client that the lawyer reasonably believes to be required by law or by order of a court or other tribunal. The client may not override this authority.

Question 34

What is a lawyer’s actual authority to make a decision on behalf of a client? (Q)

Answer 34

A lawyer has the actual authority to make a decision on behalf of a client if:

the client has expressly or implicitly authorized the lawyer to make the decision,
the decision is one that the lawyer reasonably believes to be required by law or by a court order, or
the client ratifies the decision.

The client generally will be bound by the decisions of his lawyer that are made with actual authority.

Question 35

What is a lawyer’s apparent authority to make a decision on behalf of a client? (Q)

Answer 35

A lawyer has apparent authority to make a decision on behalf of a client if (1) a court or a third party reasonably believes that the lawyer is authorized to make the decision (2) based on the client’s manifestations that the lawyer has the authority to do so. The lawyer’s own manifestations of authority, taken alone, are insufficient to create apparent authority.

If apparent authority exists, then the lawyer’s decision will be attributed to the client.

Question 36

May a lawyer counsel a client to engage in activity that the lawyer knows is fraudulent or criminal? (Q)

Answer 36

No. A lawyer may not counsel a client to engage in activity that the lawyer knows to be fraudulent or criminal. Nor may a lawyer assist a client in undertaking or perpetuating activity that the lawyer knows to be fraudulent or criminal. If a lawyer discovers a client’s unlawful conduct, the lawyer may need to withdraw from the representation if continued representation would assist the client in engaging in the unlawful conduct.

Question 37

May a lawyer discuss with a client the legal consequences of a proposed action and assist the client in a good-faith effort to determine the meaning or application of the law? (Q)

Answer 37

Yes. A lawyer may discuss with a client the legal consequences of a proposed action and assist the client in a good-faith effort to determine the meaning or application of the law. This rule applies even if the lawyer determines that the client’s proposed conduct would be illegal or fraudulent.

However, lawyers may not perform these functions for the purpose of assisting clients in perpetuating crime or fraud. The rules of professional conduct distinguish between good-faith counsel, which is designed to help a client understand his legal obligations, and counsel intended to assist the client in committing an unlawful act.

Question 38

A client retained a lawyer to help the client structure his businesses in a way that minimized his tax liability. The lawyer outlined a strategy that created favorable tax treatment for the client. The client proposed several additional methods for structuring his businesses. The lawyer fully assessed each of the client’s suggestions and concluded that the methods would be unlawful. The lawyer explained to the client exactly why the client’s proposed methods would be unlawful and advised the client against adopting any of them. Without the lawyer’s knowledge, the client employed one of the illegal methods about which he consulted the lawyer and against which the lawyer advised.

Will the lawyer be held responsible for the client’s unlawful conduct? (Q)

Answer 38

No. The lawyer will not be held responsible for the client’s unlawful conduct. A lawyer may discuss with a client the legal consequences of any proposed course of conduct without fear of sanction or culpability, but the lawyer must not recommend that the client engage in criminal or fraudulent conduct. If a lawyer discovers a client’s unlawful conduct, the lawyer may need to withdraw from the representation if continued representation would assist the client in engaging in the unlawful conduct.

Here, the lawyer assessed the client’s proposals and recommended against the client adopting them because they were unlawful. The client adopted an unlawful method without the lawyer’s knowledge and against the lawyer’s advice. Thus, the lawyer is not culpable for the client’s actions. If the lawyer discovers the client’s unlawful conduct, the lawyer may need to withdraw from the representation.

Question 39

Does the lawyer have a duty to a client after the lawyer-client relationship has concluded? (Lerman)

Answer 39

Yes. Even after the relationship is terminated, the lawyer has a continuing duty to protect client confidences. (361)

Question 40

What must the lawyer return to the client after the relationship has concluded? (Lerman)

Answer 40

When the work is finished, however, the lawyer must return to the client “any papers and property to which the client is entitled” as well as any unearned payment that the client may have made. (361)

Question 41

If a client has not paid the bill at the end of the representation, may the lawyer keep the client’s documents until the client pays? (Lerman)

Answer 41

If the client has not yet fully paid the lawyer’s fee or the fee is disputed, the lawyer may retain the documents that the lawyer created for the client for which compensation has not been received, unless retention would “unreasonably harm the client.” (363)

Question 42

In general, at what point does a lawyer’s representation of a client end? (Q)

Answer 42

In general, a lawyer’s representation of a client ends when the assistance agreed upon by the lawyer and the client has been fully rendered or otherwise concluded. Thus, the end of the representation may depend on how the client and the lawyer have defined the scope of the representation.

Question 43

In general, does a client have an absolute right to terminate her lawyer’s services? (Q)

Answer 43

Yes. In general, a client has the absolute right to terminate her lawyer’s services at any time and for any reason. However, termination generally does not relieve the client from paying any fees owed for services rendered before termination.

In addition, a client’s right to terminate the services of a court-appointed lawyer may be subject to or limited by other provisions of law.

Question 44

In what circumstances is a lawyer required to withdraw from representing a client? (Q)

Answer 44

A lawyer must withdraw from representing a client if:

the representation will result in a violation of the law or of the rules of professional conduct,
the lawyer’s mental or physical condition materially interferes with his ability to represent the client, or
the client terminates the lawyer’s services.

Question 45

In what circumstances is a lawyer permitted, but not required, to withdraw from representing a client? (Q)

Answer 45

A lawyer is permitted to withdraw from representing a client, but is not required to do so, if:

the lawyer can withdraw without materially harming the client’s interests;
the client uses the lawyer’s services to act in a way that the lawyer reasonably believes is criminal or fraudulent;
the client has used the lawyer’s services to commit crime or fraud;
the client insists on acting in a way that the lawyer finds repugnant or with which the lawyer fundamentally disagrees;
the client substantially fails to fulfill an obligation to the lawyer regarding the lawyer’s services (e.g., failing to pay the lawyer) and has been warned that the lawyer will withdraw unless the obligation is fulfilled;
the representation will impose an unreasonable financial burden on the lawyer or has been made unreasonably difficult by the client; or
there is other good cause for withdrawal.

Question 46

Upon terminating a representation, must the lawyer take steps to protect the client’s interests? (Q)

Answer 46

Yes. Upon terminating a representation, the lawyer must take reasonable steps to protect the client’s interests. This may require such actions as:

giving the client reasonable notice,
giving the client time to find other counsel,
giving the client papers and property to which the client is entitled, and
refunding any advance payments that the lawyer has not yet earned.

Question 47

A lawyer assisted a client by drafting loan agreements between the client and a bank. The client used the loans to buy computer equipment that he then rented to businesses. In drafting the loan agreements, the lawyer was required to provide the bank with the name of the businesses that would be renting the computer equipment. One day, the lawyer realized that one loan agreement he had previously prepared listed a nonexistent business. The lawyer realized that the client had used his services to perpetuate a fraud. The lawyer found no evidence that the client had created more than one fraudulent loan application.

May the lawyer withdraw from representing the client? (Q)

Answer 47

Yes. The lawyer may withdraw from the representation. One reason a lawyer may withdraw from a representation is if a client has used the lawyer’s services to perpetrate a crime or fraud. If a client engages in ongoing criminal conduct, then the lawyer must withdraw, but if the lawyer’s services have simply been misused in the past and the criminal conduct is not ongoing, then withdrawal is optional. Upon terminating the representation, the lawyer must take reasonably practicable steps to protect the client’s interests, including giving the client reasonable notice of the withdrawal, allowing the client time to get a new lawyer, and surrendering any papers and property to which the client is entitled.

Here, the lawyer learned that the client had used his services to perpetrate a fraud against the bank by using loan applications drafted by the lawyer to acquire loan money that was not used for the purposes stated in the applications. Thus, the lawyer may withdraw from the representation. The client’s fraudulent conduct happened only once, and in the past, so withdrawal is optional. If the lawyer does choose to withdraw, he must take reasonable steps to protect the client’s interests.

Question 48

If good cause exists for a lawyer to terminate a representation, may a lawyer nonetheless be prevented from doing so by a court rule or other law? (Q)

Answer 48

Yes. Even if good cause exists to terminate a representation under the rules of professional conduct, a lawyer’s ability to do so might nonetheless be limited by court rules or other legal requirements. A lawyer must take account of these other potential limitations in deciding whether to terminate the representation.

Question 49

In most courts, is a lawyer required to obtain the court’s permission to terminate a representation in a pending civil or criminal case? (Q)

Answer 49

Yes. In most courts, a lawyer needs the court’s permission to terminate a representation in a pending civil or criminal case. Accordingly, even if good cause exists to terminate a representation under the rules of professional conduct, a lawyer must nonetheless continue the representation if ordered to do so by a court or other tribunal.

Question 50

A lawyer decided that he was tired of representing a client because the client constantly failed to listen to the lawyer’s advice The client’s behavior gave the lawyer good cause for the termination. Three days before a scheduled court hearing with the client, the lawyer called the client and said, “I’m done with you.” The lawyer did not respond to any of the client’s subsequent phone calls, emails, or other inquiries. In addition, the lawyer never returned any of the client’s papers and property that were in the lawyer’s possession, even though the client was entitled to the return of these items.

Did the lawyer take the appropriate steps in terminating the representation? (Q)

Answer 50

No. The lawyer did not take appropriate steps to terminate the representation. A lawyer may terminate a representation for good cause, but the lawyer must take reasonably practicable steps to protect the client’s interests, including:

giving the client reasonable notice,
allowing the client time to hire other counsel, and
giving the client papers and property to which the client is entitled.

Here, the lawyer had good cause to terminate the representation but did not take the proper steps to do so. The lawyer ended the representation just before a hearing and ceased all contact with the client. By providing such short notice, the lawyer failed to protect the client’s interests by affording the client time to find a new lawyer. Nor did the lawyer give the client any of the property or papers to which the client was entitled. Thus, the lawyer did not terminate the representation appropriately.

Question 51

What is a representation agreement between a lawyer and a client? (Q)

Answer 51

A representation agreement, also called a retainer agreement, is a contract between a lawyer and a client that sets out the terms of the representation. Although the MRPC do not prescribe a particular form for a representation agreement, these agreements typically address:

the scope of the lawyer’s services to the client, e.g., what the lawyer will and will not do, when the client-lawyer relationship will begin and end, the legal problem to be addressed, the names of any adverse parties, and the identity of the lawyers who will perform the work on the client’s behalf;
the payment of fees and expenses, e.g., the basis and rate of the fee, whether the fee is fixed or contingent, and a process for handling fee disputes; and
the duties of each party upon termination of the representation.

Question 52

What is a contingent fee? (Q)

Answer 52

A contingent fee is a fee the amount of which depends on the outcome of the lawyer’s representation. The most common form of contingent fee is a fixed percentage of a settlement or damages award obtained through the representation.

Question 53

In general, is a written representation agreement generally required in the course of a representation? (Q)

Answer 53

No. In general, a written representation agreement is not required in the course of a representation. In non-mandatory language, the MRPC merely state that a written retainer agreement is preferable to a verbal agreement, because a writing reduces the chance of a misunderstanding.

The major exception to this approach is a contingent-fee arrangement, which under the MRPC is required to be in writing and signed by the client.

Question 54

In general, are contracts between a lawyer and a client concerning the client-lawyer relationship enforceable? (Q)

Answer 54

Yes. As a general rule, contracts and contract modifications between a lawyer and client concerning the client-lawyer relationship may be enforced by either party.

However, there are two major exceptions to this rule. First, a client may avoid a contract or contract modification if it is made beyond a reasonable time after the representation has commenced, unless the lawyer demonstrates that the contract or modification was reasonable and fair to the client when made. Second, a client may avoid enforcement if (1) the contract is formed after the lawyer has finished work on behalf of the client, and (2) the lawyer failed to inform the client of facts needed to evaluate the appropriateness of the lawyer’s compensation or other benefits under the contract.

Question 55

From whose perspective will a court construe a contract between a client and a lawyer? (Q)

Answer 55

A court assessing a contract between a client and a lawyer will use an objective standard to construe the contract from the perspective of a reasonable person in the client’s circumstances. In other words, the relevant inquiry is what the client reasonably understood, not what the lawyer understood.

Question 56

In general, is a lawyer required to inform a client promptly of any decision or matter that requires the client’s informed consent? (Q)

Answer 56

Yes. In general, a lawyer must inform a client promptly of any decision, circumstance, or other matter that requires the client’s informed consent. This rule is designed to ensure that a lawyer will consult about these matters with the client and obtain informed consent before acting. However, the lawyer need not do so if previous client-lawyer discussions have already established what the client wants to do in the situation.

Question 57

In general, is a lawyer required to keep the client reasonably informed about the status of the matter that is the subject of the representation? (Q)

Answer 57

Yes. In general, a lawyer must keep the client reasonably informed about the status of the matter that is the subject of the representation. This includes communicating with the client about any procedural or substantive developments in the matter.

Question 58

In general, is a lawyer required to respond promptly to a client’s reasonable requests for information? (Q)

Answer 58

Yes. In general, a lawyer must respond promptly to a client’s reasonable requests for information. If a prompt response is not possible, then the lawyer or a member of the lawyer’s staff must acknowledge the client’s request and tell the client when to expect a response.

Question 59

Is a lawyer required to explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation? (Q)

Answer 59

Yes. A lawyer must explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The relevant inquiry is whether the lawyer communicates the information in a manner that is likely to allow the client to understand (1) what information is being communicated and (2) the importance of that information. In general, a client should have enough information to participate intelligently in decisions about the objectives of the representation and the means of pursuing those objectives, so long as the client has the ability and desire to do so.

Question 60

If a lawyer knows that a client expects the lawyer to engage in activities that are prohibited by the rules of professional conduct or another law, what must the lawyer do? (Q)

Answer 60

If a lawyer knows that a client expects the lawyer to engage in activities that are prohibited by the rules of professional conduct or another law, the lawyer must consult with the client about the relevant limitations on the lawyer’s conduct. The client will often not be aware of the limitations placed on the lawyer by the law or ethical rules, so it is the lawyer’s responsibility to communicate these limitations.

Question 61

Despite the general rule requiring prompt communication with a client, may a lawyer delay transmitting information to a client if the client would be likely to react imprudently to an immediate communication? (Q)

Answer 61

Yes. A lawyer may delay transmission of information to a client if the client would be likely to react imprudently to an immediate communication (e.g., if a client is suffering from an incapacity that prevents the client from acting rationally in response to information). However, a lawyer may not delay or withhold information merely to serve the convenience or interests of the lawyer or of someone else.

Question 62

In general, if a lawyer is representing an organization, to whom at the organization should the lawyer address communications about the representation? (Q)

Answer 62

In general, if a lawyer is representing an organization, the lawyer should address communications about the representation to the appropriate officials or authorized representatives of the organization. It is often impossible for a lawyer to communicate with every member of an organization. Ordinarily, parties solve this problem by designating individuals who will handle communications regarding the representation. A system of limited or occasional reporting may be used to communicate routine matters.

Question 63

Two sole practitioners represented a single client in a personal-injury case arising from a bus accident. One of the lawyers was an expert in personal-injury claims involving bus accidents. The other lawyer was competent in personal-injury matters generally, but he lacked expertise in bus accidents. The expert lawyer did 10 percent of the work on the case. However, because experts in bus-accident cases were difficult to find, the other lawyer agreed that the expert lawyer would receive 30 percent of the fee. The client agreed in writing to the fee division and the manner in which the fee would be divided. The total fee was reasonable.

Is this fee-division arrangement permissible? (Q)

Answer 63

No. This fee-division arrangement is not permissible. Lawyers who are not in the same firm may engage in fee division only if:

the fee division is proportional to each lawyer’s work on the case, or each lawyer takes joint responsibility for the entire matter;
the client has agreed in writing to the fee arrangement and the amount of each lawyer’s share, and
the total fee is reasonable.

Here, the two lawyers were unaffiliated sole practitioners. The client gave written approval of the arrangement, and the total fee was reasonable. However, nothing indicates that the two lawyers took joint responsibility for the entire matter, and therefore, each lawyer may be compensated only in proportion to the lawyer’s actual work on the case. Because the expert lawyer did 10 percent of the work, he may receive only 10 percent of the fee, not 30 percent. Thus, the fee arrangement is impermissible.

Question 64

Does a lawyer sometimes owe a duty of care to a nonclient who relies on the lawyer’s opinion or legal services? (Q)

Answer 64

Yes. A lawyer owes a duty of care to a nonclient who relies on the lawyer’s opinion or legal services if:

the lawyer, or the lawyer’s client with the lawyer’s acquiescence, invites reliance by the nonclient;

the nonclient actually relies on the lawyer’s opinion or legal services; and

the nonclient is not too remote from the lawyer to be protected under applicable tort law or other law.

Question 65

Does a lawyer sometimes owe a duty of care to a nonclient when the lawyer is performing work that benefits the nonclient? (Q)

Answer 65

Yes. A lawyer owes a duty of care to a nonclient if:

the lawyer knows that one of a client’s principal goals in the representation is to benefit a nonclient;

the recognition of a duty to the nonclient would not significantly interfere with the lawyer’s duties to the client; and

the absence of a duty to the nonclient would make enforcement of the lawyer’s obligations to the client unlikely (e.g., if the client has died).

Question 66

Does a lawyer sometimes owe a duty of care to a nonclient when the lawyer represents a nonclient’s fiduciary? (Q)

Answer 66

Yes. A lawyer owes a duty of care to a nonclient if:

the lawyer’s client is a fiduciary, trustee, executor or guardian for the nonclient;

the lawyer knows of the need for the lawyer to act on a matter within the scope of the representation to prevent or correct the client’s breach of fiduciary duty if the breach is criminal or fraudulent, or if the lawyer has assisted the client in the breach;

the nonclient cannot reasonably protect her rights; and

a duty to the nonclient would not significantly interfere with the lawyer’s duties to the client.

Question 67

In general, does a lawyer owe a duty of care to an opposing party in litigation or in an arm’s-length transaction? (Q)

Answer 67

No. In general, a lawyer does not owe a duty of care to an opposing party in litigation or in an arm’s-length transaction. However, a duty of this kind might arise if the lawyer induces reliance on the lawyer’s opinions or services, e.g., by providing an opinion letter as part of a settlement or a transaction.

Question 68

A lawyer represented the guardian of an incompetent person’s estate. A minor was the beneficiary of the estate, but the minor was not the lawyer’s client. The guardian was supposed to manage the estate for the benefit of the minor’s health and welfare. The lawyer discovered that the guardian was fraudulently embezzling funds from the estate, which was a breach of the guardian’s fiduciary duty.

Does the lawyer have a duty to the minor to rectify the guardian’s breach of fiduciary duty?

Answer 68

Yes. The lawyer has a duty to the minor. If a lawyer’s client is a fiduciary for a nonclient who cannot protect her own rights, and the lawyer knows action is needed to rectify the client’s fraudulent breach of fiduciary duty, the lawyer has a duty to the nonclient to act, so long as this would not significantly interfere with the lawyer’s duties to the client.

Here, the lawyer represented the fiduciary guardian, not the minor. However, the minor was likely unable to protect her own rights due to her minority. The lawyer knew the guardian was engaged in a fraudulent breach of fiduciary duty and that action was needed to rectify the breach. The lawyer’s duty to the minor would not interfere with the lawyer’s duties to the guardian, because the ethical rules do not require lawyers to allow clients to commit fraud. Thus, the lawyer has a duty to the minor to rectify the guardian’s breach.

Question 69

What model rule discusses duties to prospective clients? (Q)

Answer 69

Model rule 1.18.

Question 70

A small business owner consulted a lawyer for advice on a potential action against her landlord. The business owner had received a letter from the landlord, stating that she owed back rent in the amount of $1,500. The letter said that the landlord would sue her unless she paid in full within 30 days. The small business owner was concerned because the alleged rent owed could force her to close her business. The lawyer told the business owner he would consider representing her and promised to contact her again in a week. Upon further investigation, the lawyer discovered that he already represented the small business owner’s landlord in several other matters. One week after their initial consultation, the lawyer told the small business owner he could not represent her. He then received a call from another client, who was a competitor of the small business owner. The client was worried that the small business owner was invading his territory, and wanted to consult with the lawyer about reporting the small business owner for zoning violations.

May the lawyer disclose the small business owner’s rent dispute and potential insolvency to his client? (Q)

Answer 70

No, because the lawyer learned that information from his consultation with the small business owner as a prospective client. Model Rule 1.18(a) defines a prospective client as one who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter. Regardless of whether a relationship ultimately forms, a lawyer speaking with a prospective client “shall not use or reveal information learned in the consultation . . . .” See Model Rule 1.18(b). The small business owner is a prospective client, because she discussed the possibility of forming a relationship with the lawyer about representing her in the rent dispute. Therefore, even though the small business owner never formed a relationship with the lawyer, the lawyer is still obligated to keep information he learned during the consultation confidential.

Question 71

A lawyer hosted a weekly podcast in which he offered his thoughts on intellectual property legal issues arising in current events. The end of each podcast invited listeners to submit via email any legal questions they would like to hear him address on the next podcast. An individual emailed, asking the lawyer to represent him in upcoming proceedings before the Immigration and Naturalization Service. The individual did not know the lawyer and had not worked with the lawyer before. The lawyer ignored the email. When the individual’s friend, who was an attorney, approached the individual about assisting him in his immigration proceedings, the individual refused his offer, saying that he had already retained the lawyer on the podcast.

Are the individual and the lawyer likely in a client-lawyer relationship? (Q)

Answer 71

No, because one unsolicited email cannot form a client-lawyer relationship. If a lawyer does not clearly decline a request for legal services, the lawyer may still be deemed to represent a client if the lawyer knows, or should have known, that the client reasonably relied on the lawyer to provide the services. Restatement (Third) of the Law Governing Lawyers § 14(1)(b).

Here, an individual emailed the lawyer seeking representation in upcoming proceedings before the INS. The email clearly expressed the individual’s intention to form a lawyer-client relationship. However, the lawyer did not respond to the individual’s email to clearly decline the request for legal services. Several facts make it unlikely that the lawyer would still be deemed to represent the individual. First, the email was unsolicited. While the lawyer asked for topic suggestions for his podcast, he did not invite potential clients to contact him. Second, the individual sent just one email. The individual did not communicate anything in that single email that would have indicated to the lawyer that the individual was relying on the lawyer to provide the services. Any reliance by the individual, based on a single unsolicited email, sent to a lawyer the individual did not know, would arguably be unreasonable. For these reasons, the individual and the lawyer are not in a client-lawyer relationship. See id. illus. 3.

Question 72

What does model rule 1.4 discuss? (Q)

Answer 72

Model rule 1.4 discusses communication between lawyers and clients.

Question 73

What does model rule 1.2 discuss? (Q)

Answer 73

Model rule 1.4 discusses scope of representation & allocation of authority between client & lawyer.