LAWYER-CLIENT RELATIONSHIP Flashcards
What is a Prospective Client?
A person who consults with a lawyer for the purpose of retaining the lawyer or securing legal service or advice is a prospective client and the lawyer owes this person a duty of confidentiality and the duty to avoid conflicts of interest.
What is an actual client?
Creation of the lawyer-client relationship considers what a client’s reasonable perception is as to whether a relationship has been formed even if a formal agreement has not been created.
Define the Duty to Communicate
The lawyer shall promptly inform the client of any decision that affects the client’s informed consent as well as reasonably consult with the client and keep them informed of the status of the case, including any settlement and plea offers, and promptly respond to client communications and reasonable requests for information.
Can the lawyer delay their duty to communicate?
A lawyer may delay transmission of information to a client if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others.
Under the Cal. Only rule, when does an atty must inform the client of the funds received?
Lawyer must notify client of funds or other property the lawyer received on behalf of
client within 14 days.
Define the [Scope of Representation] of a lawyer.
The lawyer must abide by the client’s substantive decisions (e.g., settle, plea, or waive jury trial, expenses, testify, appeal) after the lawyer has consulted with the client. The lawyer is responsible for employing the appropriate legal strategy (e.g., motions, discovery, witness or evidence use, etc.).
Issue-spotting tip: Often when the lawyer fails to inform the client about a possible settlement, offer, or plea, it invokes both the issues of the scope of the representation and the lawyer’s duty to communicate. As a result, if scope is involved, always address the duty to communicate as well.
Define the Duty of Confidentiality [ABA] Rule
A lawyer shall not reveal information relating to the representation of a client, except the lawyer may in the following situations:
- The client gives informed Consent,
- The disclosure is impliedly Authorized to represent the client,
- The lawyer reasonably believes the disclosure is necessary to prevent reasonably certain Death or substantial bodily harm,
- To prevent the client from committing a Crime or fraud or to mitigate or rectify a crime or fraud committed by the client that has resulted or is reasonably certain to result in substantial injury to the financial interests or property of another and the client is or has used the lawyer’s services to do so,
- To Comply with a court order, or other law,
- To secure legal Advice about the lawyer’s compliance with ethics rules,
- To establish a claim or Defense on behalf of the lawyer in a controversy between the lawyer and the client, or in defense of the conduct the client was involved in with the lawyer’s services, (E.g., defend malpractice, or collect fees.) or
- To detect or resolve Conflicts of interest arising from a change in employment or reorganization (cannot compromise the attorney-client privilege).
Memorization tip:
Cats And Dogs Can Cuddle And Dream Constantly
Define the Duty of Confidentiality [Cal. only] Rule
Duty of confidentiality (Cal.): A lawyer shall not reveal information relating to the representation of a client without the informed consent of the client, except the lawyer may in the following situations:
- When the lawyer reasonably believes it is necessary to prevent a criminal act that is likely to result in death or substantial bodily harm, however the lawyer must:
a) First make a good faith effort to persuade the client not to commit the act, and
b) Inform the client of the lawyer’s ability to reveal the information, and
c) Only reveal as much information as necessary to prevent the act.
- When authorized by the State Bar Act or other law.
- To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or in defense of the conduct the client was involved in with the lawyer’s services. (E.g., defend malpractice, or collect fees.)
Difference between Cal. and ABA rule: Cal. is much stricter and provides fewer grounds
permitting revealing confidential information.
Define the [Attorney-client privilege] Rule
Attorney-client privilege is an evidentiary privilege that allows a client to keep confidential all communications with their attorney, intended to be confidential, made for the purpose of facilitating legal services. The client can refuse to testify and prevent their attorney from testifying.
What facts must be considered to validate the attorney client privilege?
- Only applies to communications, not physical evidence turned over to lawyer.
- Confidential communications: The communication must be intended to be confidential.
a) The presence of a third party may serve to waive the privilege, unless where necessary (e.g., translator).
b) California Evidence Code [CEC only]: Allows holder to stop eavesdroppers and other wrongful inceptors from revealing confidential information.
- Professional services: The communication must be made for the purpose of facilitating legal services, though a fee need not be paid.
- Holder of the privilege: Only the client holds the privilege, and the lawyer may assert it on the client’s behalf.
- Corporation/organization attorney-client privilege.
a) Federal law: Applies to employees/agents if authorized by the corporation to make the communication to the lawyer.
b) California Evidence Code (CEC): Applies to employees/agents if the natural person to speak to the lawyer on behalf of the corporation, or the employee did something for which
the corporation may be held liable and the corporation instructed the employee to tell its lawyer what happened. (As applied, both federal and CEC rules yield the same result.)
- Privilege lasts until:
a) Federal law: After death, with the exception of a will contest.
b) California Evidence Code [CEC] : Privilege evaporates when the dead client’s estate has been fully distributed, and their personal representative has been discharged.
What are the exceptions for the Attorney-client privilege?
The attorney client privilege does not apply if:
a. Lawyer’s services were used to further crime of fraud; or
b. Relates to a dispute between the lawyer and client; or
c. Two or more parties consult on a matter of common interest and the communication is
offered by one against another; or
d. California Evidence Code - CEC only: Lawyer reasonably believes the disclosure is necessary to prevent a criminal act that lawyer reasonably believes is likely to result in death or substantial bodily harm.
Exam tip: The duty of confidentiality is an ethical duty and applies to any disclosure of a communication, regardless of whether the client requests it; whereas the attorney-client privilege is an evidentiary privilege and is much narrower and only applies when the lawyer or client will be testifying in a judicial proceeding about confidential communications pertaining to the legal services.
Define the Duty to avoid fee misunderstandings [under ABA Only]
ABA: All fees must be reasonable considering the following factors:
- Time limitations imposed by the client or circumstances,
- Experience, reputation, and ability of the lawyer;
- Nature and length of the relationship with the client;
- Time and labor, novelty and difficulty, and skill required;
- Fee customarily charged in the locality for similar services;
- Likelihood that the acceptance will preclude other employment;
- Amount involved and results obtained; and
- Whether the fee is fixed or contingent.
Memorization tip: Since there are so many factors, think of TENT FLAW to remember the ABA rules.
Define the Duty to avoid fee misunderstandings under Cal. Only
Fees may not be illegal or unconscionable based on the same ABA factors above as well as these additional factors:
- Whether the lawyer engaged in Fraud or overreaching in setting the fee,
- Whether the lawyer failed to Disclose material facts,
- Sophistication of both the lawyer and the client,
- The Amount of the fee in proportion to the value of the services performed,
- Whether the client gave informed Consent to the fee.
Tip: think of –> Furry Dogs Satisfy Anxious Clients.
Fee agreements should state the following:
- How the fee is calculated,
- The general nature of the legal services, and
- The responsibilities of the lawyer and the client.
What are the writing requirements for fee agreements under ABA and Cal.?
-The ABA prefers a writing but does not require one for regular fee agreements as long as the scope and fees are communicated to the client within a reasonable time after commencing representation.
-California requires all fee agreements over $1,000 to be in writing unless:
a. The client is a corporation,
b. The agreement was made during an emergency,
c. The client waives the writing requirement in writing, or
d. The services are for a previous client with similar services in which the fee can be implied.
Define the Fee arbitration Rule under the ABA and Cal.
Cal. requires a lawyer to notify a client of their right to mandatory fee dispute arbitration prior to suing the client for fees.
The ABA only requires arbitration if such a procedure has been established as mandatory by a state bar or law.
What are all the requirements for Contingency fee agreements
A contingency fee agreement is one in which the fee is dependent on the outcome of the matter and must:
- Be in writing.
- Be signed by the client (Cal. requires the agreement to be signed by both the lawyer
and client with each having a copy). - State the method by which the fee is to be determined, including percentages in the event of a settlement, trial, or appeal.
- State the litigation and other expenses to be deducted from the recovery, and
- State whether such expenses will be deducted before or after the contingent fee is calculated (Cal. looks at how disbursements and costs will affect the contingency fee and client’s recovery and if the client will have to pay any related matters not covered by the agreement).
Cal. further requires that the agreement state that the fee is negotiable (unless the claim is for negligence against a health care provider.
Can Contingency fee agreements cover Domestic or criminal cases?
No. A lawyer may NOT enter into a contingent fee agreement in
a domestic matter (i.e., dissolution of marriage, spousal or child support, but recovery of post-judgment balances due are allowed) or a criminal case.
Issue spotting tip: When there is a contingency fee agreement, look for potential conflict of interest issues since the lawyer has a stake in the case outcome.
What is the Fee Splitting rule under ABA?
ABA: Division of fees between lawyers who are not in the same firm may be made only
if:
- The division is proportionate to the services performed by each lawyer, or each lawyer assumes joint responsibility for the representation,
- Client agrees to the arrangement and the agreement is confirmed in writing, and
- The total fee is reasonable.
What is the Fee splitting rule under Cal. Only?
Cal.: Division of fees between lawyers who are not in the same firm may be made only
if:
- The lawyers enter into a written agreement to divide the fee,
- The client consents in writing after full written disclosure that the fees will be divided along with the identity of the lawyers and the terms of the division, and
- The total fee is not increased simply because of the division of fees.
May a lawyer share fees with a non-lawyer?
A lawyer may NOT share legal fees with a non-lawyer.
State the Referral Fees/Gifts for Recommendations Rule
A lawyer shall not give (Cal. says compensate or promise) anything of value to a person for recommending the lawyer’s services unless:
a. It is for reasonable advertisement costs,
b. It is for a qualified referral service, or
c. It is a nominal gift as an expression of appreciation not intended as compensation for the
recommendation or future recommendations,
d. They are referring clients to another lawyer or nonlawyer professional pursuant to a
reciprocal referral agreement (Cal. says arrangement) if it is not exclusive and the client is
informed of the agreement.
What is the Cal. Retainer Fee?
A lawyer may agree to or collect a fee that that is “earned on receipt” or
“non-refundable,” or in similar terms if the client agrees in writing after disclosure that
they cannot get a refund.
Purpose: A true retainer is to ensure the lawyer’s availability to the client during a specified period or for a specified matter.
State the Cal. Flat Fees Rule
A lawyer may charge a flat fee for specified legal services that constitutes complete payment for the performance regardless of the amount of work done (i.e., $5,000 to
draft a will and trust). Fees over $1,000 must be in writing and signed by the client.
a. Deposit of funds: Funds may be deposited into the law firm’s operating account until
earned, but the firm must disclose to the client in writing that they have a right to have the funds deposited into a client trust account until earned and the client can get a refund in the event of termination, or services not completed.
