The Attorney-Client Relationship Flashcards
What’s the duty of competency?
Must be competent in representing. Requires knowledge, skill and thoroughness and preparation, 1.1.
What happens if an attorney is incompetent?
Can be disciplined, Florida Bar v. Sandstrom. Requires expert testimony to prove, e.g. legal expert.
What must be shown to prove causation in an action for legal malpractice?
A case within a case: plaintiff was likely to prevail in the underlying.
How may an attorney defend themselves in a legal malpractice action?
Defense of judgmental immunity: honest error in judgment re: debatable point of law caused the bad result, Meagher v. Kavli.
What must be shown to establish ineffective assistance of counsel in criminal defense?
Under Strickland v. Washington:
- Misconduct - conduct < reasonableness
- Prejudice - had lawyer acted properly, strong % of different outcome.
What should a non-engagement communication include / do?
- Notice that firm declined representation
- Advise to seek advice of other counsel
- Advise to take prompt action if general SOL is a risk
What factors inform whether a fee is reasonable?
The work performed, skill required and market terms, 1.5a.
What fee arrangements are expressly permitted?
Hourly, contingent, fixed/flat, value-based and blended fees, 1.5b.
What is required to use a contingent fee?
Per 1.5c:
- Signed writing by client
- Specify method of computation
- Specify expenses client must pay
- Indicate whether contingency is on gross or net recovery
- Identify expenses client must pay regardless of outcome
- At conclusion: written breakdown
What kinds of contingent fees are per se improper?
Contingent on securing divorce
Criminal cases
Under what circumstances may a lawyer split fees with other lawyers?
- Split (i) in proportion to services OR (ii) joint responsibility
- Client agreement signed in writing
- Total fee reasonable, 1.5e.
Can witnesses be paid fees?
- Experts: no contingency, but can get expenses and lost wages, 3.4b
- Fact: no fees, can pay expenses, id.
What must lawyers do with funds belonging to others, e.g. those held in trust?
Per 1.15:
- Not commingle
- Maintain records
- Notify clients upon receipt
- Deliver promptly.
- Render full accounting
- Hold disputed funds in trust
Can lawyers engage in business transactions with clients?
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.
What should be in an engagement letter?
- Explanation of scope / services
- Explanation of fees and expenses
- Notice: right to arbitrate fee disputes
Can you prospectively waive / limit malpractice liability?
IFF client is independently represented in agreeing, 1.8h.
Why do we use limited engagement agreements?
- Avoid misunderstandings
2. Manage risk
What does the “means vs. ends” distinction mean practically?
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
When must a lawyer withdraw?
- Rep would violate law / RPC
- Physical / mental incapacity
- Fired
When may a lawyer withdraw?
- No MAE
- Future crime / fraud
- Past crime / fraud
- Repugnant / fundamental disagreement
- Uncooperative client
- Unreasonable burden
- Other good cause
How do we know whether a client is incompetent to stand trial?
Dusky test:
(1) Ability to consult with lawyer rationally
(2) Rational and factual understanding of proceeding
How does client impairment affect representation?
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.
