Keeping the Client Flashcards
How to determine whethe ryou can keep a client?
- Are you competent to deal with the client’s problem
- You charge a proper fee & deal properly with client funds
- No conflict is presented by the representation
What constitutes competent representation?
- the lawyer must possess the requisite knowledge & experience to handle the client’s problem
What can an atty do if they are not competent to handle a matter?
- declinethe representation or withdraw
- take the time to make yourself competent SO LONG AS
- if does not amount to an unreasonable delay or expense to the client
- Associate competent counsel (Bring in help)
NOTE - Client consent will not shield incompetence
HYPO
A possible client shows up at an attorney’s office and hires her to represent him in a civil suit in which he is the defendant. The subject matter is one unfamiliar to the attorney. After she agrees to represent the client, he informs her that he is scheduled to be deposed in the matter this very day in a law office in the same complex as his new attorney. Can she represent him at the deposition? What should she do?
This is not an emergency since it is only a deposition and not a court proceeding thus cannot use that exception. However the atty can associate someone who is competent, get the deposition postpone so she can familarize herself with the matter or withdraw
What is malpractice?
- can occur where the lawyer is intially competent but in the course of representation does something incompetent leading to malpractice
- malpractice is Civil liability beyond the scope of the ethical rules
- Tort rules will apply
- A lawyer may not enter into an agrrement limiting/settling his liability for malpractice unless the client is independently represented in making that agreement
What is the general rule for fees & costs of leagl services?
- the fee must be reasinable
What is the rule for fee splitting?
- can never split a legal fee with a non-lawyer
- SAME FIRM ——- YES
- DIFFERENT FIRM
- YES, if:
- there is sufficient proportionality on how the fee is split
- split in proportion to the services each atty performs
- fee split in any manner the lawyers choice so long as each assumes joint liability for the finished product
- must be with the client’s consent
- agree to the share each lawyer to receive
- must be confirmed in writing
- total fee charged must be reasonable
- there is sufficient proportionality on how the fee is split
- YES, if:
Whar is the rule for contingent fees?
- Generally prohibitted in:
- Criminal cases
- Most marital proceedings
- Must be writing (ABA also requires it be signed by the client, not NY)
What must be in the writing of a contingent fee?
- method the fee is to be calculated
- what expenses are to be deducted
- whether they are to be deducted before or after the contingent fee is calculated
What fee arrangements need to be in writing?
- fee spliting fees
- contingent fees
- domestic relation cases any fee arrangement should be in writing
NOTE - generally all others do not have to be in writing
What are you required to do with client funds?
- applies to both client funds & client property
- REQUIRES:
- place them in a safe place
- A trust fund account in a bank located in NY
- lawyer must have complete records about what he does w/clients funds/property
- render the records to client upon request
- place them in a safe place
What is the rule of commingling of funds?
- cannot comingle client funds with your own
- separate acct for only client funds (can be for all clients)
How do you handle the short period of commingling of funds?
- atty comes into possession when the case is settled
- immediately deposit the check into the client trust fund acct
- immediately withfraw whatever money the lawyer is entitled to
- immediately notify the client of the receipt of the settlement check
- make available to the client the portion that belongs to the client
What happens to funds if there is a dispute as to what goes to the lawyer & the client?
- Any portion in dispute of ownership should remain in the client trust fund acct until that dispute is ettled
How are retainers treated?
