Mandate Flashcards
Under what circumstances may an attorney refuse to undertake a mandate? When is an attorney obliged to refuse a mandate and is he ever obliged to accept a mandate
An attorney may in principle refuse or accept any mandate
an attorney must refuse in the following circumstances:
- does not have necessary expertise to do the work
- does not have sufficient time
- conflict of interest in the situation
- cannot come to a satisfactory agreement regarding fees
- instruction is unlawful, immoral or contrary to public policy
He must accept mandate from existing client in emergency. Might have to accept if limited attorneys available in area.
Define or describe the circumstances requiring an attorney to decline a mandate
Due to
- Lack of Expertise/ Qualification
- Danger of a conflict of interest
- Mandate to do or assist in doing of something illegal or improper
What happens if an attorney is assigned with a new commission he has never encountered before?
He may accept such mandate on the condition that it is fairly routine matter which he would be able to master with the necessary research and possible assistance from a senior colleague if needed. Further more research is crucial, inform client that you which to study legal procedure and position, by using legal precedent and available authority. Drafting of relevant documents practice guides such as Amlers Forms and Precedents will be ised. Be careful of negligence.
What are the grounds that would entitle the attorney to withdraw as attorney and terminate client mandate
or Discuss under which circumstances an attorney may terminate his mandate
An attorney may only terminate mandate on good cause. For example:
- failure by client to provide funds
- being asked to do something illegal/dishonourable
- failure to furnish him with instructions
- improper conduct on part of the client
- clients deliberate fraud
- personality clashes
- where client not accept attorneys advice and persists on defending action when attorney advises against this
- illness of attorney
- being hindered by client or prevented from conducting his case
A client fails to provide you with funds and instructions iro approaching trial. How do you handle the failure by the client?
Foolish enter trial without funds or instructions and i will place the client on terms so that the client can have no doubt of my intention to withdraw which i must then do at an opportune time (leaving client with enough time find another attorney)
Discuss the right of an attorney to withdraw from a mandate
While the client can terminate mandate at any stage, there are limitations on attorneys ability to terminate it
he can only withdraw on good cause eg failure by client provide funds on request; failure by client to give instructions; conflict of interest; request by client to attorney to do something illegal/dishonorable or illness of the attorney.
Discuss the way the withdrawal be implemented if it arises from the failure of client to give instructions
Before withdrawal the attorney must place client on terms and withdraw within a reasonable time
Discuss the rights of retention and the professional duty of any new attorney
The attorney has a lien on documents on which he has bestowed skill and labour. the new attorney should not act until the first attorneys costs have been paid/secured
Write a letter to you erstwhile client and explain to him what must happen before the file can be handed over
We refer to your email of yesterday in which you advised us that our mandate is terminated and requested us to transfer our file of the matter to attorneys ABC.
We are not in the position to do so forthwith as we have not yet debited your account for services rendered to you. Until such time as the account has been drawn by us and settled by you we are not obliged to transfer the content of the file.
We shall let you have an estimate of our fees and disbursements within the next day or two. If you find it acceptable we require payment thereof immediately. On receipt of payment we shall let you have the file. If you do not find that acceptable we shall arrange for taxation thereof and until that has happened retain your file.
