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MPRE > Module 2 (Client-Lawyer Relationship) > Flashcards

Module 2 (Client-Lawyer Relationship) Flashcards

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1
Q

when does a lawyer-client relationship exist?

A

1) a person manifests an intent that the lawyer will provide legal services and the lawyer AGREES
2) the prospective client REASONABLY RELIES on the lawyer to provide legal services
3) a tribunal APPOINTS a lawyer to work with a client

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2
Q

when does a lawyer implicitly assent?

A

when he fails to clearly decline the representation and the client reasonably relies on the representation and the reasonableness is a question of fact

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3
Q

when must a lawyer refuse to represent a client?

A

1) client’s motive is harassment
2) unsupportable factual or legal position (doesn’t apply to a criminal case)
3) lawyer is not competent
4) lawyer has strong personal feelings
5) the lawyer is mentally or physically impaired

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4
Q

if a person consults a lawyer about forming a lawyer-client relationship and it doesn’t ensue, what is the responsibility of the lawyer?

A

1) to protect the prospective client’s confidential information
2) protect any property that the prospective client has given the lawyer
3) use reasonable care in giving the person any legal advice (whether the claim has merit)

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5
Q

how can a lawyer fulfill their obligation to make legal services available to all that need it?

A

by accepting a fair share of unpopular matters or indigent or unpopular clients

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6
Q

what are the nature of attorney fees subject to?

A

a contractual agreement between the attorney and the client unless it is court ordered

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7
Q

what must an attorney do before representation regarding the attorney fees?

A

communicate the basis or rate of the fee and the expenses for which the client will be responsible within a reasonable amount of time before commencing representation

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8
Q

is writing required regarding attorney fees?

A

it’s preferable but not required

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9
Q

what is the exception to when attorney fees are required to be in writing?

A

contingent fee agreements

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10
Q

if the lawyer regularly represents the client and the fee hasn’t changed, does the lawyer need to communicate the fee with the client every time?

A

no

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11
Q

will the court enforce a contract for an unreasonable high attorney fee for an unreasonably high fee for expenses?

A

no and the attorney will be subject to discipline

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12
Q

what are the factors in determining the reasonableness of the fee?

A

1) TIME and LABOR required
2) NOVELTY and DIFFICULTY of the questions involved
3) SKILL needed to perform
4) Whether the lawyer has to pay other people fees
5) the fee customarily charged in the area
6) the amount at stake and the results obtained
7) TIME LIMITATIONS
8) NATURE and LENGTH OF THE RELATIONSHIP
9) EXPERIENCE, REPUTATION, and ABILITY of the lawyer
10) whether the fee is fixed or contingent

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13
Q

what must the attorney NOT charge the client for?

A

overhead expenses (staffing, equipping, running office)

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14
Q

can an attorney charge a client for special services such as photocopying, long distance calls, computer research, special deliveries, secretarial overtime?

A

Yes

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15
Q

can a lawyer require a client to pay them in advance?

A

yes but she must refund any unearned part if she is fired or withdraws

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16
Q

what is a true retainer fee as distinguished from a payment in advance?

A

money that is paid solely to ensure the availability of the lawyer

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17
Q

does a lawyer need to return a retainer fee is they withdraw or is fired?

A

no

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18
Q

can a lawyer accept property (ownership in a business) in return for services?

A

Yes but it can’t involve a proprietary interest in the cause of action or the subject of litigation

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19
Q

why is the acceptance of property for services subject to scrutiny?

A

because it may be a business transaction between a lawyer and a client

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20
Q

can a lawyer make a fee arrangement that could curtail services in the middle of the relationship that can put the client in a bargaining disadvantage?

A

no, they must not

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21
Q

can a lawyer permit a client to pay a legal fee by credit card?

A

Yes

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22
Q

can a lawyer take an interest-bearing promissory note to secure payment fees?

A

Yes

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23
Q

can a lawyer use a statutory, common law or contractual attorney’s lien to secure the payment of a fee?

A

Yes if it is permitted by law

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24
Q

what types of cases are contingent fees prohibited?

A

1) criminal cases

2) domestic relation cases

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25
Q

even though contingent fees are prohibited in domestic relation cases, can a lawyer use a contingent fee to recover money that is PAST DUE under an alimony or support decree?

A

Yes

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26
Q

must a contingent fee be in writing?

A

Yes and signed by a client

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27
Q

what must be included in the writing regarding a contingent fee?

A

1) how the fee will be CALCULATED (including % lawyer will get if settled before trial, during or on appeal)
2) what LITIGATION AND OTHER EXPENSES will be DEDUCTED from recovery
3) DEDUCTION OF EXPENSES before or after the fee is calculated
4) what EXPENSES THE CLIENT must pay whether or not she wins

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28
Q

what must the lawyer give the client at the end of a contingent fee case?

A

a written statement showing the outcome of the case, the remittance to the client and how it was calculated

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29
Q

what type of remedies are available to the lawyer with fee disputes?

A

1) liens
2) retention of funds in a trust account
3) mediation or arbitration

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30
Q

can a lawyer split a legal fee with another lawyer?

A

the general rule says no

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31
Q

why is there a rule that the lawyer can’t split fees with another lawyer?

A

to prevent lawyers from becoming “client brokers” and to discourage excessive fees

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32
Q

what are a few exceptions that allow lawyers to split fees with other lawyers?

A

1) they work in the same firm

2) separation and retirement agreements

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33
Q

when will the law allow for lawyers to split fees with other lawyer from other firms?

A

1) it must be a single bill to the client
2) the fee is totally reasonable
3) the fee is proportionate to the work done by each lawyer
4) the client receives a written agreement stating the % each lawyer will get

34
Q

can a lawyer pay someone for recommending a client to him?

A

NO

35
Q

even though a lawyer cannot pay for a recommendation of a client, can they set up a “reciprocal referral”

A

Yes as long as it is exclusive and the lawyer’s client is informed

36
Q

when can a lawyer limit their scope of representation?

A

1) the limitation is reasonable

2) the client gave confirmed consent

37
Q

even though a lawyer can’t assist with a crime, can they discuss the consequences of a crime?

A

Yes

38
Q

what must a lawyer do when a client expects assistance that violates the law or ethics rules?

A

the lawyer must explain that she cannot do what the client expects

39
Q

can a lawyer discuss a proposed conduct of a client, and explain that it is unlawful?

A

Yes

40
Q

is the lawyer a party to the illegal conduct if the client uses the lawyer’s advice to carry out a crime?

A

No but the lawyer must recommend or explain to the client that the conduct is illegal and that it would be breaking the law

41
Q

if a client insists on illegal or ethical assistance, what must the lawyer do?

A

withdraw from representation

42
Q

when withdrawal from a case where the client is about to commit illegal activity is not enough, what must they do?

A

make a “noisy withdrawal” that gives outsiders notice of her withdrawal

43
Q

the fact that a lawyer’s “noisy withdrawal” will put a client’s victim on guard permissible?

A

Yes, it is actually praiseworthy

44
Q

what decisions by the client, must the lawyer adhere to?

A

1) whether to accept a SETTLEMENT OFFER
2) the PLEA to enter in a criminal case
3) whether to waive a JURY TRIAL in a criminal case
4) whether the client will TESTIFY in a criminal case
5) whether the client will APPEAL

45
Q

what is the lawyer considered to the client?

A

their agent where the lawyer acts on his behalf

46
Q

does a lawyer have actual authority if she reasonably believes that she is authorized to act based on dealings with the client?

A

Yes

47
Q

does actual authority need to be explicit or implicit?

A

either one

48
Q

when does a lawyer have apparent authority?

A

when dealing with the court and third parties that assume that the lawyer has authority based on some manifestation from the client

49
Q

how does a client create apparent authority?

A

with the mere act of retaining a lawyer

50
Q

even if a lawyer acted without authority, can the client subsequently ratify the act (like cashing a settlement check)?

A

Yes

51
Q

if the client ratifies an act where the attorney did not have authority, can she sue the lawyer for damages?

A

No

52
Q

if the client ratifies an authorized act (like cashing a settlement check), is the lawyer still subject to discipline?

A

Yes

53
Q

when does a lawyer’s ACTUAL authority end?

A

1) matter is complete
2) lawyer is fired or withdraws
3) client dies (or dissolves if it is business)
4) lawyer dies or is unable to continue representation (disbarment or disability)

54
Q

when does a lawyer’s APPARENT authority end?

A

when the third party knows or should know that events that end actual authority happened or when it can be reasonably inferred that the lawyer lacks actual authority

55
Q

when a lawyer’s actual authority ends what must a lawyer do?

A

not purport to have authority and notify third parties that are relying on the existence of the authority

56
Q

when a client is a minor or has diminished mental capacity, is it the client who makes all decision?

A

Not necessarily and they may be able to make some decisions that affect their well-being (children in custody situations or older clients involving routine financial decisions)

57
Q

when a client has diminished capacity and faces risk of substantial physical, financial, or other harm, what may the lawyer do?

A

take reasonable actions to protect the client like consulting with people or entities that can protect the client and seeking appointment of a guardian

58
Q

when taking protective action for a client with diminished capacity, does the lawyer have authority to reveal the client’s confidential information?

A

Yes, it is implied but only to the extent necessary to protect the client

59
Q

when can a lawyer take legal action on behalf of someone with diminished capacity?

A

when the client has serious diminished capacity and the client faces imminent and irreparable harm to her health, safety, or financial interests

60
Q

when must a lawyer not take legal action on behalf of someone with serious diminished capacity?

A

when he reasonably believes that the client has a representative

61
Q

Normally, would a lawyer seek compensation for emergency actions taken on behalf of a non client?

A

No

62
Q

what must the lawyer do when a decision requires a client’s informed consent?

A

promptly inform the client

63
Q

what does “informed consent” mean?

A

the client agrees to the proposed course of conduct after the lawyer explained the risks and alternatives

64
Q

if a lawyer must make an immediate decision (like objecting to a line of questioning), does the lawyer need to consult with the client before acting?

A

no

65
Q

what is constitutes as a lawyer making a “material error”

A

1) it is reasonably likely to harm or prejudice the client

2) reasonably give the client reason to discharge the lawyer even if it won’t harm or prejudice them

66
Q

once the attorney-client relationship ends, does the lawyer have to inform the former client of material errors discovered after the fact?

A

no

67
Q

when may a lawyer delay the transmission of information to the client?

A

if the client will be likely to act imprudently to an immediate communication

68
Q

does a lawyer not have to reveal certain information if he has a court order not to?

A

Yes, he must

69
Q

when can a client avoid a contract between an attorney and the client?`

A

1) there was no contract made at the outset

2) the contract was made after the work was completed

70
Q

if a contract is not made at the outset, when is the client obliged by it?

A

when the lawyer shows the client that the contract and circumstances were fair and reasonable to the client

71
Q

how can a client/attorney relationship prematurely end?

A

1) client fires the lawyer
2) the lawyer must withdraw in some situations
3) the lawyer may withdraw in some situations

72
Q

can a client fire a lawyer at any time?

A

yes with no good reason

73
Q

when a client fires an attorney, what is the attorney liable for?

A

quantum meruit (equitable action to avoid unjust enrichment) for the reasonable value of the work that they did before getting fired

74
Q

what is the attorney entitled to if the attorney before the case is over and the client is in a contingent fee agreement?

A

still entitled to a quantum meruit for the value of the work they already did

75
Q

when does the lawyer’s claim for payment need to occur on a contingency fee when they are fired before the case is over?

A

after the contingency comes to pass

76
Q

do the courts permit substitution attorney after a lawsuit has already been filed?

A

yes but with permission and if it doesn’t cause undue delay or disruption

77
Q

if a lawyer seeks to withdraw from a case and the court denies permission for a substitute attorney, what must happen?

A

the attorney must continue the representation even if the withdrawal was for good cause

78
Q

when must an attorney withdraw from an attorney-client relationship?

A

1) if their mental or physical condition materially impairs them from continuing representation
2) if the continuance of the representation would cause the attorney to violate a law or rule

79
Q

does an attorney need a reason to withdraw?

A

No but only if it can be done without a material adverse effect on the client’s interest

80
Q

what are the attorney’s duties when terminating a client relationship?

A

1) REASONABLE NOTICE
2) giving the client TIME to obtain another lawyer
3) REFUNDING ATTORNEY FEES that have not been earned yet or any advance costs
4) RETURN ALL PAPERS AND PROPERTY

MPRE (4 decks)

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