Lawyer-Client Relationship Flashcards

1
Q

Is there a duty to accept representation?

A

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

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2
Q

Prohibited Objectives of Employment

A
  1. Acting for the purpose of harassing or maliciously injuring a person
  2. Presenting a claim or defense not warranted under existing law (unless supported by a good-faith argument for modification or reversal)
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3
Q

When does the lawyer/client relationship begin?

A

Lawyer-Client Relationship begins when C reasonably believes the relationship exists (no formal writing required)

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4
Q

Duty to Reject

A

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

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5
Q

What decisions are made by the client?

A
  1. Objectives and goals of representation,
  2. Whether to accept or reject a settlement,
  3. Whether to testify in a criminal case,
  4. Whether to waive the right to trial by jury (or other fundamental rights), and
  5. Whether to enter a plea
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6
Q

What is the ABA vs. CA distinction for settlement offers?

A

ABA = L must communicate ALL settlement offers to C and C must make the final decision to accept

CA = L must communicate WRITTEN settlement offers or an oral offer in a civil matter if it is a significant development

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7
Q

What decisions are made by the Lawyer?

A

Procedural and tactical decisions about strategy and methods for achieving Client’s goals.

Lawyer can limit the scope of the representation if:

  • it is reasonable under the circumstances,
  • not otherwise prohibited by law, and
  • C gives informed consent
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8
Q

What is the prohibition on counseling crimes or fraud?

A

L is prohibited from counseling C in criminal or fraudulent conduct.

If C’s conduct has already begun, then L is required to avoid assisting the client and must withdraw from representation

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9
Q

What is the general rule on termination of the L/C relationship?

A

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

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10
Q

When is withdrawal mandatory?

A
  1. When continued representation would result in a violation of the ethical rules (ABA = L must withdraw if failure to withdraw would result in violating the ethics rules or other laws. CA = L must withdraw if he knows or should know that the representation will violate only CA rules)
  2. When Lawyer’s health (physical or mental condition) either materially impairs his ability to represent C (ABA) or renders it unreasonably difficult to carry out the representation effectively (CA)
  3. Client’s bad faith (CA only) - L knows or should know C asserted a claim without probable cause or to harass or injure another person
  4. Discharge - C has an absolute right to discharge L
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11
Q

When is a Lawyer permitted, but not required, to withdraw from representation?

A
  1. If no harm to Client (ABA = when the withdrawal will not materially harm the client; CA = L cannot withdraw merely because it won’t materially harm the client)
  2. When acceptable even with harm to Client (ABA)
  • 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 -Representation causes unreasonable financial burden
  • C fails substantially to fulfill an obligation to L regarding L’s services
  • C makes representation unreasonably difficult
  • Other good cause exists
  1. When acceptable to withdraw even with harm to Client (CA)
  • C’s claim is not supported under existing law or good-faith argument for modification or reversal
  • C seeks to pursue (or insists L pursue) a criminal/fraudulent course of conduct or has used L’s services to advance a course of conduct L reasonably believes was a crime/fraud
  • C breaches a material term of the agreement with or obligation to L regarding L’s services
  • C makes representation unreasonably difficult
  • Inability to work with co-counsel indicates that the best interests of C likely will be served by withdrawal
  • L’s mental or physical condition renders it difficult for L to carry out the representation effectively
  • Continued representation is likely to violate CA rules
  • Other good cause exists
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12
Q

What duties to parties have upon termination of the L-C relationship?

A
  1. Lawyer has a duty to take reasonable measures to minimize harm to C
  2. Must return papers and property in CA - ABA allows L to retain papers as security fee
  3. L must promptly return any unearned advance fees (but does not apply to a true retainer in CA)
  4. Client has a duty to pay the value of services rendered and, in CA, a duty to pay contingency fees calculated based on the reasonable value of services.
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13
Q

What factors are considered to determine the reasonableness of an attorney’s fee?

A
  1. Difficulty of the case (time, labor, novelty, and skill necessary),
  2. Preclusion of other employment,
  3. Type of fee arrangement,
  4. L’s expertise, and
  5. Customary fee for similar services in a given locality.
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14
Q

What factors give rise to an unconscionable fee (CA standard)?

A
  1. Whether L engaged in fraud or overreaching in negotiating or setting the fee,
  2. whether L has failed to disclose material facts,
  3. fee amount in proportion to value of services,
  4. L’s and C’s relative sophistication,
  5. novelty/difficulty of legal questions involved,
  6. time limitations,
  7. nature/length of professional relationship,
  8. L’s experience/reputation,
  9. fixed or contingent fee,
  10. time/labor, and
  11. C’s informed consent
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15
Q

When is a writing required for a fee arrangement between two lawyers?

A

CA only:

  • A fee agreement must be in writing, signed by both parties, when total expenses and attorney fees exceed $1,000 or the fee is contingent.
  • A copy of the signed contract must be given to the client
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16
Q

What are the exceptions to the writing requirement for fee agreements?

A

No writing required - for corporate clients, -if client waives written contract after full disclosure, - fee implied by previous similar services by L to C - services were rendered in an emergency situation to avoid prejudice to C; or - a writing is impracticable (n/a to contingent fee) *Note - contingent fees must be in writing, without exception

17
Q

What are the required contents of a written fee agreement?

A

Basis of compensation, nature of legal services, and contractual responsibilities of L and C

18
Q

What is the consequence of failing to comply with the written fee agreement requirement?

A

The contract is voidable by C and L is entitled to a reasonable fee only

19
Q

When are contingent fees prohibited

A

In criminal cases and in domestic-relations cases where the fee is contingent upon obtaining a divorce or on the amount of support recovered

20
Q

What are the requirements of a contingent fee agreement?

A

ABA = it must be in writing and include the signature of C, fee calculation methodology, and details of calculation for expense deductions CA = must be in writing and signed by both L and C, must include contingency fee rate, how disbursements/costs will affect the contingency fee and C’s recovery, and the extent to which C must compensate L for matters not covered in the contract

21
Q

What is permitted with regard to terms of payment?

A
  1. Advance payment - permitted but unearned portion must be returned upon termination 2. Property - permitted for payment but not as proprietary interest in the cause of action or subject of litigation 3. Curtailing services - contract limiting L’s services up to a stated amount when more extensive services are foreseeable is NOT permissible
22
Q

Rules relating to Fee Splitting

A

Lawyers from Different Firms: - ABA = allowed if fee is in proportion to services rendered, C gives written consent, and total fee charged is reasonable - CA = permitted if L’s enter into a written agreement to divide the fee, C gives written consent after full disclosure, and total fee is not higher solely because of the fee splitting Referral Fees - ABA = not permitted for mere recommendations - CA = L may offer or give a gift or gratuity to a person having made a recommendation resulting in the employment of L or L’s law firm - gift or gratuity must not be offered or given in consideration of any promise/agreement that (i) the gift or gratuity would be forthcoming or (ii) additional referrals would be made or encourged in the future Non-Lawyers - fee splitting not permitted if activities include practice of law Reciprocal referral agreements - cannot be exclusive, client must be informed of nature/existence of agreement, and must not be of indefinite duration

23
Q

Rules Relating to Client Fund Accounts

A
  1. In general - all funds must be deposited into identifiable bank account. 2. No commingling - C’s funds must be kept separate from L’s funds 3. Recordkeeping - must maintain account records for fives years (CA) 4. Dispute over Funds - disputed portion of funds must not be withdrawn from C trust account until dispute is resolved