Lawyer-Client Relationship Flashcards
Undertaking Representation
What happens when a lawyer undertakes representation?
Triggers the full range of duties that the lawyer owes to the client
Undertaking Representation
What duties apply before undertaking representation?
- Duty of Confidentiality
- Duty to avoid COI
Undertaking Representation
While generally lawyers do not have a duty to take clients, when do they have a duty to retain clients?
when representation will violate other ethics or other law
Undertaking Representation
what is the lawyer-client relationship governed by?
the contract entered into by the lawyer and client and by general contract principles, modified by duties that lawyers owe clients.
Undertaking Representation
When does the lawyer-client relationship formally begin?
When a client reasonably beleives that the lawyer has undertaken to provide the cleint with legal service.
Does not depend on the existence of a written contract or a fee payment
Fees
A lawyer’s fee must be…
reasonable
Fees
In general, a written contract setting the fee is…
exceptions?
- not required but preferred
- Exceptions (must be in writing):
1. Contingent fees; and
2. fee-sharing
Fees
What is a contingency fee and are lawyer’s allowed to use them? Exceptions?
Where the lawyer’s fee comes out of the client’s recovery. They are permitted. Appropriate in cases that produce a “Res,” a pool of recovery money from which the contingent fee may be paid.
Exceptions:
1. Criminal cases; and
2. certain domestic relations cases
What are the additional restrictions placed on contingency fees?
- Must be in writing and must be signed by the client
- The written agreement must explain the way in which the fee will be calculated and, in particular, the way in which deductions for expenses will be calculated
- The lawyer must provide an ending statement in writing to the client explaining the outcome of the matter and providing the calculation of the fee and expenses
What special restrictions apply to fee sharing among lawyers in the same firm?
there are none
What special restrictions apply to fee sharing among lawyers in different firms or with nonlawyers?
Permissible only if:
1. Total fee is reasonable
2. Client agrees to the arrangement
3. Agreement is made before the services are rendered; and
4. Agreement is in writing
What is a “forwarding fee,” and does VA approve of it?
Occurs when one lawyer refers the matter to a second lawyer and takes a cut of the fee without actually doing any legal work. The Rules seek to prevent this problem. VA does not like this.
When can fees be share with nonlawyers?
Only under limited circumstances (such as profit sharing for nonlawyer employees or certain retirement plans).
Lawyers cannot enter into multidisciplinary practice (e.g., cannot partner with an accountant or other professionals)
Fiduciary Duty
From the moment the lawyer-client relationship begins,…
the lawyer owes fiduciary duties to the
client.
Fiduciary Duty
The lawyer must exercise… (3)
scrupulous good faith, candor, and care in managing the client’s
interests.
Fiduciary Duty
Rules for maintaining client trust accounts?
Lawyers must maintain client trust accounts and safety deposit boxes for the safekeeping of client property.
* Lawyers must maintain the account in the state where they practice
* Lawyers must maintain good records for later examination.
Lawyers must keep their own property completely separate from cleint money and property.
* Only client money may be in the trust account.
* The lawyer must maintain a separate office operating account.
* When a lawyer co-mingles funds with a client’s, the lawyer is subject to discipline
Rule for when a lawyer recieves the property from someone for someone else?
Unless the client agrees to another arrangement, when a lawyer receives property of another, the lawyer must promptly deliver that property and provide an accounting on request.
A lawyer is closing a real estate transaction on behalf of the seller. The buyer delivers to the lawyer, the $2 million purchase price. The lawyer has to deliver it promptly and account for it.
Competence and Diligence
What is the duty of competence?
Requires the lawyer to possess and exercise on the client’s behalf “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
Competence and Diligence
Differentiate the duty of competence from tort duty for malpractice purposes.
- No damages needed for a lawyer to be disciplined for lack of competence
- A single mistake may form liability for malpractice but will rarely support an ethics violation for incompetence
Competence
Does a lawyer need to know the law that governs a client’s case before taking it?
No, they just need the ability to acquire the necessary knowledge with
reasonable diligence.
Competence
What are the certain basic skills that all practicing lawyers must have? Special one for VA?
- understanding precedent, legal research skills, ability to identify and evaluate a client’s problem, and writing or drafting skills
- Negotiating, including choosing an appropriate negotiating strategy
Competence
What can a lawyer do in an emergency?
the lawyer may provide some limited assistance on a matter in which the lawyer would ordinarily require further research, but the lawyer must limit the service to what is necessary under the circumstances
Diligence
what is it?
The timeliness aspect of competence
Diligence
How is the rule that lawyers be diligent on their client’s behalf different form the model rules?
Model Rule 3.2 requires lawyers to expedite matters, but there is no similar requirement in VA
