Lawyer-Client Relationship

Question 1

Undertaking Representation

What happens when a lawyer undertakes representation?

Answer 1

Triggers the full range of duties that the lawyer owes to the client

Question 2

Undertaking Representation

What duties apply before undertaking representation?

Answer 2

1. Duty of Confidentiality
2. Duty to avoid COI

Question 3

Undertaking Representation

While generally lawyers do not have a duty to take clients, when do they have a duty to retain clients?

Answer 3

when representation will violate other ethics or other law

Question 4

Undertaking Representation

what is the lawyer-client relationship governed by?

Answer 4

the contract entered into by the lawyer and client and by general contract principles, modified by duties that lawyers owe clients.

Question 5

Undertaking Representation

When does the lawyer-client relationship formally begin?

Answer 5

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

Question 6

Fees

A lawyer’s fee must be…

Answer 6

reasonable

Question 7

Fees

In general, a written contract setting the fee is…

exceptions?

Answer 7

• not required but preferred
• Exceptions (must be in writing):
  1. Contingent fees; and
  2. fee-sharing

Question 8

Fees

What is a contingency fee and are lawyer’s allowed to use them? Exceptions?

Answer 8

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

Question 9

What are the additional restrictions placed on contingency fees?

Answer 9

1. Must be in writing and must be signed by the client
2. 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
3. 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

Question 10

What special restrictions apply to fee sharing among lawyers in the same firm?

Answer 10

there are none

Question 11

What special restrictions apply to fee sharing among lawyers in different firms or with nonlawyers?

Answer 11

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

Question 12

What is a “forwarding fee,” and does VA approve of it?

Answer 12

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.

Question 13

When can fees be share with nonlawyers?

Answer 13

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)

Question 14

Fiduciary Duty

From the moment the lawyer-client relationship begins,…

Answer 14

the lawyer owes fiduciary duties to the
client.

Question 15

Fiduciary Duty

The lawyer must exercise… (3)

Answer 15

scrupulous good faith, candor, and care in managing the client’s
interests.

Question 16

Fiduciary Duty

Rules for maintaining client trust accounts?

Answer 16

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

Question 17

Rule for when a lawyer recieves the property from someone for someone else?

Answer 17

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.

Question 18

Competence and Diligence

What is the duty of competence?

Answer 18

Requires the lawyer to possess and exercise on the client’s behalf “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

Question 19

Competence and Diligence

Differentiate the duty of competence from tort duty for malpractice purposes.

Answer 19

• 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

Question 20

Competence

Does a lawyer need to know the law that governs a client’s case before taking it?

Answer 20

No, they just need the ability to acquire the necessary knowledge with
reasonable diligence.

Question 21

Competence

What are the certain basic skills that all practicing lawyers must have? Special one for VA?

Answer 21

1. understanding precedent, legal research skills, ability to identify and evaluate a client’s problem, and writing or drafting skills
2. Negotiating, including choosing an appropriate negotiating strategy

Question 22

Competence

What can a lawyer do in an emergency?

Answer 22

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

Question 23

Diligence

what is it?

Answer 23

The timeliness aspect of competence

Question 24

Diligence

How is the rule that lawyers be diligent on their client’s behalf different form the model rules?

Answer 24

Model Rule 3.2 requires lawyers to expedite matters, but there is no similar requirement in VA

Question 25

Diligence

What types of cases have led to lawyer discipline for diligence failures? what excuses have been rejected by courts?

Answer 25

1. Cases where the lack of diligence also involved a lawyer who acts incompetently or misleads the client about the progress they have made
2. Ordinary events, such as vacation, staff shortages, other work
   obligations, are inadequate to excuse a lack of diligence

Question 26

Communication and Shared Decision-Making

What duty?

Answer 26

Lawyers owe clients a duty to communicate with clients and to meaningfully share decision making responsibilities with them

Question 27

Communication and Shared Decision-Making

What is the duty to communicate?

Answer 27

lawyer must keep a client informed of the status of the matter and
respond to reasonable requests for information

Question 28

Communication and Shared Decision-Making

How is the scope of representation determined?

Answer 28

Lawyers and clients can agree to the scope of representation, including the length and breadth of the lawyer’s representation.

Question 29

Communication and Shared Decision-Making

What do clients decide? What do lawyers decide?

Answer 29

Clients set the goals of representation, lawyers determine the best means to achieve those ends.

Question 30

Communication and Shared Decision-Making

Rules prohibit lawyer from…

Answer 30

counseling or assisting their clients in the commission of crime or frauds

Question 31

Communication and Shared Decision-Making

When a lawyer represents a client with diminished capacity,…

Answer 31

the lawyer must attempt to maintain as ordinary a lawyer-client relationship as possible.

Question 32

Termination of Representation

What duties continue after the relationship ends? What is the proper term for a lawyer terminating representation?

Answer 32

1. Confidentiality and CoI
2. Withdrawal

Question 33

Termination of Representation

When must a lawyer withdraw?

Answer 33

1. Continued representation will violate ethics rules
2. Continued representation will violate other law
3. Lawyer’s physical or mental health is impaired
4. Lawyer is fired

Question 34

Termination of Representation

When is a lawyer permitted to withdraw?

Answer 34

If withdrawal may be effected without any material, adverse effect to the client, the lawyer may withdraw

Even if some harm may come to the client from the withdrawal, a lawyer may withdraw when:
1. Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is illegal or unjust
2. In the past, the client used the lawyer’s services for crime or fraud
3. Client actions that are repugnant or imprudent
4. Client failure to meet obligations after a warning
5. Unreasonable financial burden
6. Client unreasonably difficult to work with
7. Other good cause

Question 35

Termination of Representation

When litigation is pending, a lawyer must obtain the ________________________ to withdraw

Answer 35

court’s permission

Question 36

Termination of Representation

In virginia, even in matters not related to court, a judge has the power to…

Answer 36

order a lawyer to continue to represent a client even when grounds to withdraw exist

Question 37

Termination of Representation

Duties after termination? (4)

besides confidentiality and CoI

Answer 37

1. Minimize the harm to the client upon termination
2. Return any unearned fee to the client
3. return papers and property belonging to the client
4. If the client discharges the lawyer, the lawyer is entitled to receive any fees that have already been earned