Lawyer-Client Relationship Flashcards
Is there a duty to accept representation?
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)
Prohibited Objectives of Employment
- Acting for the purpose of harassing or maliciously injuring a person
- Presenting a claim or defense not warranted under existing law (unless supported by a good-faith argument for modification or reversal)
When does the lawyer/client relationship begin?
Lawyer-Client Relationship begins when C reasonably believes the relationship exists (no formal writing required)
Duty to Reject
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
What decisions are made by the client?
- Objectives and goals of representation,
- Whether to accept or reject a settlement,
- Whether to testify in a criminal case,
- Whether to waive the right to trial by jury (or other fundamental rights), and
- Whether to enter a plea
What is the ABA vs. CA distinction for settlement offers?
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
What decisions are made by the Lawyer?
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
What is the prohibition on counseling crimes or fraud?
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
What is the general rule on termination of the L/C relationship?
L must give C reasonable notice so that C can obtain new L
When is withdrawal mandatory?
- 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)
- 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)
- 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
- Discharge - C has an absolute right to discharge L
When is a Lawyer permitted, but not required, to withdraw from representation?
- 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)
- 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
- 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
What duties to parties have upon termination of the L-C relationship?
- Lawyer has a duty to take reasonable measures to minimize harm to C
- Must return papers and property in CA - ABA allows L to retain papers as security fee
- L must promptly return any unearned advance fees (but does not apply to a true retainer in CA)
- 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.
What factors are considered to determine the reasonableness of an attorney’s fee?
- Difficulty of the 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 a given locality.
What factors give rise to an unconscionable fee (CA standard)?
- Whether L engaged in fraud or overreaching in negotiating or setting the fee,
- whether L has failed to disclose material facts,
- fee amount in proportion to value of services,
- L’s and C’s relative sophistication,
- novelty/difficulty of legal questions involved,
- time limitations,
- nature/length of professional relationship,
- L’s experience/reputation,
- fixed or contingent fee,
- time/labor, and
- C’s informed consent
When is a writing required for a fee arrangement between two lawyers?
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
What are the exceptions to the writing requirement for fee agreements?
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
What are the required contents of a written fee agreement?
Basis of compensation, nature of legal services, and contractual responsibilities of L and C
What is the consequence of failing to comply with the written fee agreement requirement?
The contract is voidable by C and L is entitled to a reasonable fee only
When are contingent fees prohibited
In criminal cases and in domestic-relations cases where the fee is contingent upon obtaining a divorce or on the amount of support recovered
What are the requirements of a contingent fee agreement?
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
What is permitted with regard to terms of payment?
- 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
Rules relating to Fee Splitting
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
Rules Relating to Client Fund Accounts
- 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
