The Attorney-Client Relationship

Question 1

What’s the duty of competency?

Answer 1

Must be competent in representing. Requires knowledge, skill and thoroughness and preparation, 1.1.

Question 2

What happens if an attorney is incompetent?

Answer 2

Can be disciplined, Florida Bar v. Sandstrom. Requires expert testimony to prove, e.g. legal expert.

Question 3

What must be shown to prove causation in an action for legal malpractice?

Answer 3

A case within a case: plaintiff was likely to prevail in the underlying.

Question 4

How may an attorney defend themselves in a legal malpractice action?

Answer 4

Defense of judgmental immunity: honest error in judgment re: debatable point of law caused the bad result, Meagher v. Kavli.

Question 5

What must be shown to establish ineffective assistance of counsel in criminal defense?

Answer 5

Under Strickland v. Washington:

1. Misconduct - conduct < reasonableness
2. Prejudice - had lawyer acted properly, strong % of different outcome.

Question 6

What should a non-engagement communication include / do?

Answer 6

1. Notice that firm declined representation
2. Advise to seek advice of other counsel
3. Advise to take prompt action if general SOL is a risk

Question 7

What factors inform whether a fee is reasonable?

Answer 7

The work performed, skill required and market terms, 1.5a.

Question 8

What fee arrangements are expressly permitted?

Answer 8

Hourly, contingent, fixed/flat, value-based and blended fees, 1.5b.

Question 9

What is required to use a contingent fee?

Answer 9

Per 1.5c:

1. Signed writing by client
2. Specify method of computation
3. Specify expenses client must pay
4. Indicate whether contingency is on gross or net recovery
5. Identify expenses client must pay regardless of outcome
6. At conclusion: written breakdown

Question 10

What kinds of contingent fees are per se improper?

Answer 10

Contingent on securing divorce

Criminal cases

Question 11

Under what circumstances may a lawyer split fees with other lawyers?

Answer 11

1. Split (i) in proportion to services OR (ii) joint responsibility
2. Client agreement signed in writing
3. Total fee reasonable, 1.5e.

Question 12

Can witnesses be paid fees?

Answer 12

• Experts: no contingency, but can get expenses and lost wages, 3.4b
• Fact: no fees, can pay expenses, id.

Question 13

What must lawyers do with funds belonging to others, e.g. those held in trust?

Answer 13

Per 1.15:

1. Not commingle
2. Maintain records
3. Notify clients upon receipt
4. Deliver promptly.
5. Render full accounting
6. Hold disputed funds in trust

Question 14

Can lawyers engage in business transactions with clients?

Answer 14

Yes, if they (1) fully disclose fair terms in writing, (2) advise the client to seek independent counsel and (3) receive informed consent in writing, 1.8a.

Question 15

What should be in an engagement letter?

Answer 15

1. Explanation of scope / services
2. Explanation of fees and expenses
3. Notice: right to arbitrate fee disputes

Question 16

Can you prospectively waive / limit malpractice liability?

Answer 16

IFF client is independently represented in agreeing, 1.8h.

Question 17

Why do we use limited engagement agreements?

Answer 17

1. Avoid misunderstandings

2. Manage risk

Question 18

What does the “means vs. ends” distinction mean practically?

Answer 18

Under 1.2,

• Client decides objectives: settlements, criminal pleas, waiver of jury trials, whether to testify or appeal
• Lawyer picks means (disclosure): CoAs, quantity of experts to retain, witnesses to call

Question 19

When must a lawyer withdraw?

Answer 19

1. Rep would violate law / RPC
2. Physical / mental incapacity
3. Fired

Question 20

When may a lawyer withdraw?

Answer 20

1. No MAE
2. Future crime / fraud
3. Past crime / fraud
4. Repugnant / fundamental disagreement
5. Uncooperative client
6. Unreasonable burden
7. Other good cause

Question 21

How do we know whether a client is incompetent to stand trial?

Answer 21

Dusky test:

(1) Ability to consult with lawyer rationally
(2) Rational and factual understanding of proceeding

Question 22

How does client impairment affect representation?

Answer 22

Must maintain normalcy as much as possible. Can’t force to raise insanity defense, Faretta. Can’t force to reject death penalty, Gilmore. Can reveal confidential info to protect, e.g. medical advice, 1.14c.