Pt. 2 Client-Lawyer Relationship Flashcards
T/F: lawyers are generally free to refuse service to any person for any reason
T
lawyer-client relationship arises when: (1) person manifests an intent that the lawyer provide legal services and the lawyer _____; (2) a person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake representation, and the lawyer knows or should know that the prospective client is ______ _______ on the lawyer to provide the services; OR (3) a tribunal _____ a lawyer to represent a client
agrees; reasonably relying; appoints
lawyer’s assent is _____ when he fails to clearly decline representation and the prospective client reasonably relies on the representation
implied
how is the reasonableness of the reliance determined w/ respect to a prospective client? (i.e., what is it a question of - law or fact?)
it’s a question of fact
a lawyer is REQUIRED to refuse employment in several situations, such as:
client’s motive is to harass; unsupportable factual or legal position; lawyer is not competent (too busy or too inexperienced to handle the matter competently); strong personal feelings that are so strong they would impair lawyer’s ability to effectively represent the client; and impaired mental or physical condition that would materially impair ability to rep the client
as to client’s motive to harass —- a lawyer is subject to discipline for bringing an action, conducting a defense, asserting a position, or taking other steps, if the client’s motive is to ____, ____, or ____ a third person. Thus, a lawyer must ____ any case where he believes this is the prospective client’s motive.
embarrass, delay, or burden; reject
unsupportable factual or legal position rule —- lawyer who is serving as advocate in legal proceeding must not take a position that is either factually or legally frivolous; a position is not frivolous if the lawyer can make a ____ ____ argument that the facts are as claimed or that the present law should be changed
good faith (note that a position is not frivolous merely b/c the lawyer doesn’t have all the facts at hand at the outset, but expects to develop them during discovery)
defense lawyer may defend client to the extent allowed by ______ law even if the defense would otherwise violate the rule of bringing frivolous claims
constitutional
duties owed to a PROSPECTIVE client —
(1) protect prospective client’s confidential info, which includes declining to represent other clients in the same OR a related matter IF the confidential info would be harmful to the prospective client, (2) protect any property the prospective client haas given to the lawyer, and (3) use reasonable care in giving the person any legal advice, such as when a claim has merit, whether conflict exists, and when action must be commenced
lawyers have ethical obligation to help make legal service available to all who need it; a lawyer can fulfill this obligation by accepting a ____ _____ of unpopular matters or indigent or unpopular clients
fair share
although a writing is preferable, it is generally ___ required except in contingent fee agreements
not
lawyer has ongoing duty to _____ any changes regarding the fee arrangement; EXCEPT when the lawyer _____ represents the client and will be charging the same basis or rate as in other matters
communicate; regularly
a lawyer must, before or within a reasonable time after commencing a representation, communicate the ____ or ___ of the fee and the expenses for which the client will be responsible
basis or rate
a court will not enforce a K for an _____ high attorney’s fee or expenses and the attorney is subject to discipline for trying to exact such a fee or expenses
unreasonably
factors to consider in determining the reasonableness of a fee:
time and labor required; novelty and difficulty of the Qs involved; skill needed to perform the legal services properly; the likelihood, if apparent to the client, that the work for this client will preclude the lawyer from doing fee-paying for others; fee customarily charged int he locality for similar legal work; amount at stake and results obtained for the client; time limitations imposed by the client or the circumstances; nature and length of the relationship b/t the lawyer and the client; experience, reputation, and ability of the lawyer performing the services; and whether the fee is fixed or contingent (a contingent fee can be higher b/c it requires the lawyer to take a gamble)
attorney must disclose the ____ on which a client will be charged for legal services and expenses and the attorney’s bill should clearly show how the amt. due has been computed; the attorney must not charge the client for ordinary _____ expenses associated with staffing, equipping, and running the attorney’s office, but the attorney may charge the client for the ____ ____ to the attorney of special services like photocopying, long distance calls, computer research, special deliveries, secretarial overtime, and so on.
basis; overhead; actual cost
attorney may charge a reasonable amount to which the client has agreed in _______
advance
attorney must not charge the client ____ than her actual cost for services provided by third parties, such as court reporters, travel agents, and expert witnesses
more
is the following OK or not? attorney spends 3 hours working on client A’s case while flying on an airplane to take depositions in client B’s case, attorney bills both A and B for three hours of travel
no; attorney must not bill B for 3 hours of travel time if she elects to bill A for three hours of work time; she may charger either one or the other for the full 3hours OR apportion time b/t the two clients (this is rule against double billing time)
a lawyer MAY require her fee to be paid in advance, BUT she must refund any ____ part of the advance if she is fired or withdraws
unearned
what is a true retainer fee
money paid solely to ensure availability of the lawyer, which the lawyer who is fired or withdraws generally does not need to refund
lawyer MAY accept _____ in return for services (like an ownership interest in a business) provided that this does not involve a ______ interest in the cause of action or subject of litigation
property; proprietary; note that such can arrangement is subject to scrutiny as a conflict of interest b/c it may be a business transaction b/t the lawyer and the client
a lawyer must not make a fee agreement that could curtail services in the middle of a relationship and thus put the client at a bargaining ______
disadvantage (ex., clause in fee agreement provides that all work must be paid for in advance, client paid the attorney $2K in advance; in middle of prepping for trial, attorney told client that the original advance was used up and that if client did not advance more $$, the work would stop)
various permissible credit arrangements and security
(1) lawyer may permit the client to pay a legal fee by credit card, (2) may participate in a bar association program that enables clients to finance fees through bank loans, (3) may take an interest-bearing promissory note from a client to secure the payment of fees, (4) if permitted by local law, lawyer may use a statutory, common law, or K attorney’s lien to secure payment of a fee
under ____ ____ agreement, the lawyer collects a fee only if the matter is resolved in the client’s favor
contingent fee (usually expressed as a % of the client’s eventual recovery)
may an otherwise proper contingent fee still be proper even if there is no res, or pool of $$, from which the fee can be paid?
yes
when contingent fees are prohibited —- (1) subject to discipline if lawyer uses a contingent fee arrangement when defending a person in a _____ case and (2) for using a contingent fee in a _____ ______ case WHEN the contingency is based on the securing of a divorce, the amt. of alimony or support, or the amount of a property settlement BUT a lawyer may use a contingent fee in a suit to recover $$ ____ ___ under an alimony or support decree.
criminal; domestic relations; past due
contingent fee must be ________ in amount; lawyer must not use a contingent fee when the _____ of a case make it unreasonable to do so
reasonable; facts (i.e., would be unreasonable to make a contingent fee agreement for a clear cut winning, lucrative case that takes you 2 hours’ work)
content fee agreement MUST be in a ______ that is _____ by the client AND the writing must state 4 things —-
writing; signed; 4 things the writing must state are (1) how the fee is to be calculated (including % lawyer will get if case is settled pre-trial, won after trial, or won after appeal), (2) what litigation & other expenses are to be deducted from the recovery; (3) whether deductions for expenses will be made before or after the contingent fee is calculated; and (4) what expenses the client must pay, whether or not she wins the case
at the end of the contingent fee case, the lawyer MUST give the client a _____ statement showing the _____ of the case, the _______ to the client, and how it was ________
written; outcome, remittance, calculated
charging lien (a remedy if client refuses to pay all or portion of legal fee) definition
any recovery obtained for the client services as security for the lawyer’s fees
retaining lien (another remedy if client refuses to pay all or portion of legal fees) definition
attorney can retain documents, funds, and property of the client until his fee is paid
can lawyer file suit to recover fees?
yes (can even pursue arbitration or mediation)
if a lawyer receives funds on behalf of a client from which his fee is to be paid, and the client disputes the amount of his fee, the lawyer MUST retain the ______ amount in a client trust account until dispute is resolved
disputed
is the following proper or not? lawyer’s standard retainer agreement includes a provision requiring arbitration of both fee disputes & legal malpractice claims
yes, so long as it is clear and the clients truly understand the clause’s ramifications
three exceptions to general rule that a lawyer must not split a legal fee with another lawyer
(1) lawyers within a firm, (2) separation and retirement agreements, and (3) certain splits with lawyers outside of the firm subject to some conditions
exception about lawyers w/in a firm (fee splitting) —- partners and associates within a law firm may ____ and ____ legal fees
pool and split
exception about separation and retirement agreements (fee splitting) — law firm may make payments to a _____ partner or associate under a separation or retirement agreement
former
exception re: fee splitting with lawyers outside firm; lawyers from diff. firms may submit a single bill to a client and then split the fee IF the following three conditions are met:
(1) the total fee is reasonable; (2) the split is in proportion to the services performed by each lawyer or some diff. proportion if each lawyer assumes joint responsibility for the matter; and (3) client agrees to the split in a WRITING that discloses the share each lawyer will receive
cannot pay anyone–including another lawyer–for ______ you or _____ a matter to you
recommending or referring
what is a reciprocal referral arrangement
a lawyer may set this up with another lawyer or w/ a non-lawyer professional in which each person agrees to refer clients or customers to the other provided that the arrangement is NOT exclusive AND the lawyer’s client is informed of the existence and nature of the arrangement
a lawyer must abide by a client’s decisions concerning the ______ of a representation, and must only ____ with the client as to the means by which those are pursued
objectives; consult
lawyer may take actions that are _____ authorized to carry out the representation
impliedly
lawyer may limit the scope of representation IF: (1) the limitation is _______ under the circumstances, and (2) the client gives _______ ______.
reasonable; informed consent (ex., lawyer may agree to counsel client about dispute w/ landlord, but stipulate that if the dispute has to be arbitrated or litigated, the client will hire another lawyer for that purpose)
lawyer must not advise a client to engage in conduct that the lawyer KNOWS is _______ or _______, or assist the client in such conduct; but, the lawyer may discuss the legal _______ of any proposed course of conduct
criminal or fraudulent; consequences
lawyer may counsel or assist a client to make a _____ _____ effort to determine the validity, scope, meaning, or application of the law (i.e., purposefully violating a statute to test its validity or scope in enforcement proceeding)
good faith
when lawyer discovers that her client expects assistance that violates a law or legal ethics rule, or if the lawyer intends to act contrary to the client’s instructions, the lawyer ___ explain why she cannot do what the client expects
must
lawyer may discuss a proposed course of conduct with a client, and explain to the client that the conduct would be unlawful; if the client later uses the lawyer’s advice to carry out the crime or fraud, is the lawyer a party to the illegal conduct?
no; so long as the lawyer did not recommend the illegal conduct or instruct the client on HOW to break the law and get away with it
what must the attorney do if a client insists on illegal or unethical assistance?
withdraw from representation
when lawyer discovers that a client has begun an illegal course of action and the action is continuing, the lawyer must not ____ in the wrongdoing; in this situation, instead, the lawyer ____ withdraw because continued representation would violate rules of professional conduct
assist; must
noisy withdrawal definition
gives outsiders notice of withdrawal and disaffirms any of her prior opinions, documents, affirmations, or the like that the client is using to carry out the wrongdoing
decisions that must be made by the client (b/c they are key decisions that affect the client’s substantial legal rights) and, thus, decisions the lawyer MUST abide by (5) —
(1) whether to accept a settlement offer; (2) what plea to enter in criminal case; (3) whether to waive jury trial in criminal case; (4) whether client will testify in criminal case; and (5) whether to appeal
lawyer and client should try to resolve their disagreements, but if they cannot, the lawyer ___ withdraw or the client ____ fire the lawyer
may; may
under law of agency (b/c lawyer is client’s agent), lawyer’s actions on behalf of a client will legally blind the client IF the lawyer acted with ___ or ____ authority
actual or apparent
Actual authority - lawyer has this if she _____ believes she is authorized to act based on dealings w/ the client; actual authority can be ____ or _____; a lawyer has actual authority to take actions that she reasonably believes are required by law or court order, as well
reasonably; express or implied
when dealing with the court and third parties, lawyer has apparent authority when the court or third party _____ assumes that the lawyer has authority to act based on some ______ from the client that the lawyer had authority; even if lawyer acted w/o actual authority, client still bound if lawyer had apparent authority but client can sue the lawyer for for damages and lawyer is still subject to discipline
reasonably; manifestation
the mere act of ______ the lawyer is often enough to give the lawyer apparent authority to act on the client’s behalf
retaining; except when it comes to settlement and other decisions that are ultimately left to the client
if lawyer settles case for client w/o actual authority, client is not bound to the agreement UNLESS what
the CLIENT somehow indicated to the opposing party that the lawyer was authorized to settle the case
even if lawyer acted w/o any authority, the client may subsequently _____ the act by doing something like cashing a settlement check; the effect of this is the same as if the lawyer had originally acted w/ actual authority, client is still bound and cannot sue for damages BUT the lawyer is still subject to discipline
ratify
lawyer’s actual authority to represent a client ends when: (1) the matter is complete or the lawyer is _____ or _____; (2) the client ______ or, if the client is an org., ______; or (3) lawyer _____ or is otherwise unable to cont. representation b/c of disbarment or disability
fired or withdraws; client dies; lawyer dies
lawyer’s apparent authority ends when third party knows or ______ ______ that any of the events ending actual authority occurred OR whenever it can reasonably be _____ the the lawyer lacks actual authority
should know; inferred
when lawyer’s actual authority ends, lawyer must not longer ____ to have authority AND must ____- third parties who are relying on the continued existence of the authority
purport; notify
clients w/ diminished capacity - lawyer has a duty, so far as _____ _____, to maintain a normal lawyer-client relationship with the client; also, lawyer must treat the client with ______ and _____; even if client has guardian or other representative, the lawyer should, so far as possible, treat the client as a client particularly when it comes to communicating significant developments
reasonably possible; attention and respect
when client has diminished capacity AND faces a risk of substantial physical, financial, or other harm, the lawyer ___ take reasonable actions to protect the client; when doing so, lawyer has _____ authority to reveal client’s confidential info only to the extent necessary to protect the client
may; implied
emergency legal assistance to non client — when person with seriously diminished capacity faces _____ and ____ harm to her health, safety, or financial interest, a lawyer may take legal action on her behalf, despite her inability to est. a lawyer-client relationship or make or express considered judgments about the matter; lawyer cannot act until the person (or someone acting on her behalf) has consulted the lawyer and the lawyer should not act unless he reasonably believes the person has no other rep available
imminent and irreparable harm (any action undertake should be limited to that which is reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm)
emergency legal assistance to non client — normally, a lawyer would not seek _____ for emergency actions taken on behalf of a non-client
compensation
emergency legal assistance to non-client — has same duties was he would with respect to a client; confidences may be disclosed only to the extent necessary to accomplish the intended _____ action
protective (should disclose nature of relationship w/ person to any tribunal or counsel involved in the matter; steps should be taken to regularize the relationship ASAP)
informed consent definition
client agrees to proposed course of conduct AFTER the lawyer has a sufficiently explained the material risks and reasonable alternatives
when informed consent is required — (1) _____ clients with conflicts of interest, both must give informed consent in WRITING and (2) if adversary offers to ____ a civil case or offers a ____ ______ in a criminal case, lawyer must promptly convey the offer to client unless client has previously instructed lawyer that an offer on those terms is acceptable or unacceptable and has authorized lawyer to accept or reject such an offer
concurrent; settle; plea bargain
lawyer must keep the client _______ informed about the status of the matter and about the means by which the lawyer plans to accomplish the client’s objectives; if lawyer must make an _____ decision, such as objecting in trial, the lawyer does NOT need to consult w/ the client before acting; in less urgent situations, lawyer should consult with client before acting
reasonably; immediate
lawyer MUST inform a CURRENT client if the lawyer believes he has _____ erred in any representation of the client
materially
an error is considered material IF a disinterested lawyer would conclude that: (1) it is reasonably likely to ____ or ____ the client; or (2) even in the absence of this, it is of such a nature that it would reasonably cause the client to consider ________ the lawyer
harm or prejudice; discharging
when a client makes a reasonable request for information, the lawyer must respond ________.
promptly (or, if that is impossible, the lawyer or staff member should acknowledge client’s request and tell client when info will be available)
if client expects lawyer to do something illegal or unethical, the lawyer ____ consult with the client and explain why he cannot do what the client wants
must
the amount and kind of info and explanations the lawyer should give to the client depends on what
the client’s situation (diminished capacity client may require more; regular, est. client may have arrangement in place for online limited/occasional reporting)
lawyer MAY delay transmission of info to a client IF the client would be likely to react _________ to an immediate communication; lawyer must not, however, withhold info to serve lawyer’s or third person’s interest or convenience
imprudently
2 instances in which client may avoid the K - (1) a K between lawyer and client, including modification to existing K, is subject to scrutiny if made beyond a reasonable time _____ representation beings (like mid-way through a case), client can avoid the K UNLESS the lawyer shows that the K and circumstances of its formation were _____ and _____ to the client and (2) if K or modification was made _____ lawyer had FINISHED providing services, client may avoid it IF the client was not ____ of the facts needed to evaluate the appropriateness of the lawyer’s compensation and other benefits in the K
after; fair and reasonable; after; informed
3 ways an attorney-client relationship can end prematurely (i.e., before completion of work for which lawyer was hired) —-
(1) client can fire the attorney at any time, with or without just cause (terminable at will); (2) the lawyer MUST withdraw, and (3) lawyer MAY withdraw
when client fires attorney, client his liable to attorney in _____ _____ (equitable action to avoid unjust enrichment) for the reasonable value fo the work the attorney did before being fired; if K b/t attorney and client provides flat fee or max fee, that constitutes a ceiling on this recovery (i.e., cannot recover MORE than was provided for by express K)
quantum meruit
when client hires lawyer on a contingent fee basis and then fires lawyer before case is over, lawyer still entitled to quantum meruit recovery for reasonable value of work done before firing; however, lawyer’s claim does not arise until when
after the contingency comes to pass
permission for substitute of attorney from client may be denied by a court if a substitution would cause ____ ____ or ______
undue delay or disruption
when an attorney seeks to withdraw from a cause, the court may deny the necessary permission; in that event, the attorney must _______ the representation even if there is good cause for withdrawal
continue
an attorney _____ withdraw if the attorney’s mental or physical condition materially impairs the attorney’s ability to continue representing the client
must (this is mandatory withdrawal)
if to cont. with representation will require the attorney to violate a law or disciplinary rule, the attorney ______ withdraw
must (this is mandatory withdrawal)
an attorney may withdraw from representing a client for ANY reason if it can be done w/o ______ adverse effect on the client’s interests OR if the client _______
material; consents
a lawyer MAY withdraw from representing a client if the client persists in a course of action that involves the lawyer’s services AND that the lawyer _____ ______ is criminal or fraudulent
reasonably believes
if the client’s criminal or fraudulent conduct involves some ASSISTANCE by the lawyer, then the lawyer ______ withdraw
must
an attorney _____ withdraw from representing aa client if the client has used the attorney’s services to commit a PAST crime or fraud
may
an attorney ____ withdraw from representing a client if the client insists on taking action that the attorney considers to be repugnant or with which the lawyer has a fundamental disagreement
may
an attorney ____ withdraw from representing a client if the client substantially fails to fulfill an obligation to the attorney AND has been warned that the attorney will withdraw unless it is fulfilled (i.e., client refuses to pay attorney’s fee)
may
an attorney ____ withdraw from representing a client if to continue the representation will impose can unreasonable financial burden on the attorney
may
an attorney ____ withdraw from representing a client if the client has a made the attorney’s work unreasonably difficult (i.e., refusing to cooperate w/ attorney in discovery proceedings0
may
an attorney ____ withdraw if there is other ____ cause for withdrawal
may; good
an attorney who withdraws from a matter must comply with _____ laws that require notice to or permission of the tribunal before withdrawal
local
upon termination of the representation, the attorney must take reasonable steps to protect the client’s interests, including: (1) providing the client with _____ _____ of the withdrawal; (2) providing client with ___ to obtain another attorney; (3) _______ attorneys’ fees paid in advance and not yet earned and expense advances not yet spent; and (4) ______ all papers and property to which client is entitled
reasonable notice; time; refunding; returning
