Lawyer-client relationship

Question 1

Acceptance/rejection of clients

Answer 1

No duty to accept representation—except for a duty to accept court appointments, unless there is good cause to decline the representation (lack of competence, improper C/I, or unreasonably burdensome)

Prohibited objectives of employment—

(i) to act for the purpose of harassing or maliciously injuring a person, or
(ii) presenting a claim or defense not warranted under existing law (unless supported by a good-faith argument for modification or reversal)

Undertaking representation—L/C relationship begins when C reasonably believes the relationship exists (no formal writing required)

Duty to reject—if representation would violate an ethical rule or if L’s physical/mental condition materially impairs his ability to represent C

Question 2

Scope, objective, and means of representation

Answer 2

Decisions made by C:
• Objectives and goals of representation
• L must communicate all bona fide settlement offers to C and C must make the final decision to accept
• Testifying in a criminal case
• Waiving the right to trial by jury (or other fundamental rights)
• Entering a plea

Decisions made by L
• Procedural tactics—decisions about strategy and methods for achieving C’s goals
• L can limit scope of representation if it is reasonable under the circumstances and C gives informed consent

Prohibition on counseling crimes or fraud—in C’s criminal/fraudulent conduct—L prohibited from doing so, and if C’s conduct has already begun then L is required to avoid assisting the client and must withdraw from representation

Question 3

Termination

Answer 3

L must give C reasonable notice so C can obtain new L.

Mandatory withdrawal
1. Resulting violation
o MR—L must withdraw if failure to withdraw would result in violating the ethics rules or other laws
o CA—L must withdraw if he KSK that continued employment will violate only CA rules
2. L’s health—physical or mental condition materially impairs his ability to represent C
3. C’s bad faith—(CA) L KSK C asserted a claim without probable cause or to harass or injure another person
4. Discharge—(MR) C has absolute right to discharge L

Permissive withdrawal
1. No harm to client
o MR—only if withdrawal will not materially harm C
o CA—L cannot withdraw merely because it won’t materially harm C
2. When acceptable even with harm
o MR
 L reasonably believes C’s actions are criminal/fraudulent, or finds them repugnant, or L has a fundamental disagreement with C’s course of action
 C used L’s services to perpetrate a crime/fraud (not in CA)
 Representation causes unreasonable financial burden (not in CA)
 C breaches obligation to L regarding expenses/fees
 C makes representation unreasonably difficult
o CA
 C’s claim is not supported under existing law or a good-faith argument for modification or reversal
 C pursues (or insists L pursue) an illegal course of conduct
 C makes representation unreasonably difficult
 C insists L behave against L’s judgment
 C breaches obligation to L regarding expenses/fees
 Continued employment will violate CA rules

Duties upon termination
• L—take reasonable measures to minimize harm to C
o Return client papers and property—(MR) L can retain papers as security for fee, and (CA) must return all papers regardless of fee payment
o Returning fees—(MR) L must promptly refund any unearned advance fees (rule doesn’t apply to true retainer fee in CA)
• C—L entitled to fixed/hourly fees in quantum meruit for value of services rendered, and (CA) contingency fees generally allocated as reasonable value of services

Question 4

Fees

Answer 4

Reasonable fees
• Basis of rate—difficulty of case (time, labor, novelty, and skill necessary), preclusion of other employment, type of fee arrangement, L’s expertise, and customary fee for similar services in given locality
• Unconscionable fees (CA)—factors: fee amount in proportion to value of services, L’s and C’s relative sophistication, novelty/difficulty of legal questions involved, preclusion of other employment for L, amount involved/results obtained, time limitations, nature/length of professional relationship, L’s experience/reputation, fixed or contingent fee, time/labor, and C’s informed consent
• Writing requirement (CA)
o Must be in writing (signed by both parties)—when total expenses and attorney fees exceed $1000 or contingent fee; copy of signed contract must be given to client
o Exceptions—corporate C, C waives written contract after full disclosure, fee implied by previous similar services by L to C, emergency situation to avoid prejudice to C, or writing impracticable (Not applicable to contingent fee – that must be in writing, no exceptions)
o Contents of writing—basis of compensation, nature of legal services, and contractual responsibilities of L and C
o Failure to comply—contract is voidable by C and L entitled to reasonable fee

Contingent fees
• Domestic/criminal matters—not allowed under MR, but permitted in CA (except for dissolution of marriage)
• Requirements
o MR—must be in writing and include signature of C, fee calculation methodology, and details of calculation for expense deductions
o CA
 Must be in writing and signed by both L and C
 Contingency fee rate
 How disbursements/costs will affect contingency fee and C’s recovery
 Extent to which C must compensate L for matters not covered in contract

Terms of payment
• Advance payment—permitted but unearned portion must be returned upon termination (not required for a retainer)
• Property—permitted for payment but not as proprietary interest in the cause of action or subject of litigation
• Curtailing services—contract limiting L’s services up to a stated amount when more extensive services are foreseeable not permissible

Fee splitting
• Lawyers from different firms
o MR—fee in proportion to services rendered, C’s written consent, and total fee is reasonable
o CA—C’s written consent after full disclosure, total fee not higher solely because of fee splitting, and not unconscionable
• Referral fees—not permitted for mere recommendations (CA—permitted if it satisfies fee-splitting rules)
• Non-lawyers—not permitted if activities include practice of law (subject to limited exceptions)
• Reciprocal referral agreements—cannot be exclusive, client must be informed of existence/nature of agreement, and must not be of indefinite duration

C’s fund accounts
• In general—all funds must be deposited into identifiable bank account
• No commingling—C’s funds must be kept separate from L’s funds
• Recordkeeping—must maintain account records for five years (CA)