Professional Responsibility Flashcards
What is a lawyer’s duty to accept representation?
In general, a lawyer does not have a duty to accept representation of any client.
When does a lawyer have a duty to accept court appointments?
A lawyer has a duty to accept court appointments and to perform a certain number of hours of pro bono service annually, so long as no good cause exists to decline.
Good cause to decline representation exists if:
i) The lawyer could not handle the matter competently;
ii) The representation would result in an improper conflict of interest (e.g., when the client or the cause is so repugnant to the lawyer that it is likely to impair the lawyer’s ability to zealously represent the client);
or
iii) Acceptance would be unreasonably burdensome, (e.g., when it would impose a financial sacrifice so great as to be unjust).
When does the lawyer-client relationship begin?
The lawyer-client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required.
Duty to Reject
A lawyer has a duty to reject representation when accepting the representation would violate a rule of ethics or law or when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion.
Scope of Representation
The client decides the objectives and goals of the representation. As the client’s agent, the lawyer must abide by those decisions (within some constraints) but has the authority to determine how best to achieve those objectives.
Acceptance of Settlement
The lawyer must communicate offers of settlement to the client. The final decision whether to accept any offer rests with the client. California restricts the duty to written settlement offers or an oral offer in a civil matter if it is a significant development.
Unauthorized Settlement
A lawyer who agrees to a settlement without the client’s consent and authorization is subject to discipline, but the opposing party may enforce the agreement if the lawyer acted with apparent authority.
Criminal Cases: Client Testimony, Right to Trial by Jury, Entry of a Plea
1) Client testimony
The decision whether the client will testify in a criminal case belongs to the client. MR 1.2(a); CA RPC Rule 1.2(a).
2) Right to trial by jury
Waiving the right to a jury trial (or waiving other fundamental rights) is exclusively the client’s decision. MR 1.2(a); CA RPC Rule 1.2(a).
3) Entry of plea
The decision whether to enter a plea is exclusive to the client. MR 1.2(a); CA RPC Rule 1.2(a).
Decisions Made by the Attorney
The lawyer has the authority to make most of the decisions relating to the strategy and methods for achieving the client’s goals (e.g., the manner and scope of cross-examination, choosing a theory of the case).
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, is not otherwise prohibited by law, and if the client provides informed consent.
Client Under Disability
To the extent possible, a lawyer representing a client with diminished capacity (due to mental impairment, age, or other factors) must maintain an ordinary lawyer-client relationship.
Revealing confidential information about a client under disability
Information relating to the representation of a client with diminished capacity is protected by the confidentiality provisions of MR 1.6. In general, unless authorized to do so, the lawyer may not disclose such information. When taking protective action, including seeking the appointment of a guardian, however, the lawyer is impliedly authorized to reveal information about the client, even if the client directs otherwise. The information may be revealed only to the extent reasonably necessary to protect the client’s interests. The lawyer should determine whether it is likely that the person or entity consulted will act adversely to the client’s interests, before discussing matters related to the client.
Prohibition on Counseling Crimes or Fraud (ABA)
A lawyer is prohibited from counseling or assisting the client in conduct that the lawyer knows to be criminal or fraudulent.
However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good-faith effort to determine the validity, scope, meaning, or application of the law, rule, or ruling of a tribunal. MR1.2(d); CA RPC Rule 1.2.1. If the client’s course of action has already begun and is continuing, then the lawyer is required to avoid assisting the client and must withdraw from the representation. In certain cases, withdrawal alone may be insufficient, and the lawyer may have to give notice of the withdrawal and publicly disaffirm any opinion, document, or affirmation previously provided to the client.
Prohibition on Counseling Crimes or Fraud
A lawyer is prohibited from counseling or assisting the client in conduct that the lawyer knows to be criminal or fraudulent. In California, a lawyer is also prohibited from counseling or assisting the client in conduct that the lawyer knows to be a violation of any law, rule, or ruling of a tribunal.
However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good-faith effort to determine the validity, scope, meaning, or application of the law, rule, or ruling of a tribunal. MR1.2(d); CA RPC Rule 1.2.1. If the client’s course of action has already begun and is continuing, then the lawyer is required to avoid assisting the client and must withdraw from the representation. In certain cases, withdrawal alone may be insufficient, and the lawyer may have to give notice of the withdrawal and publicly disaffirm any opinion, document, or affirmation previously provided to the client.
California Rule: Other Prohibited Objectives of Employment
In California, a lawyer must not:
i) Bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal without probable cause and for the purpose of harassing or maliciously injuring any person; or
ii) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such law.
General Rule on Termination
An attorney may withdraw from representation when circumstances allow, but she has a duty of mitigation to lessen any adverse impact upon the client.
Mandatory Withdrawal
Resulting Violation
Attorney’s Health
Client’s Bad Faith (CA)
Discharge
Mandatory Withdrawal: Resulting Violation
Under the Model Rules, a lawyer must withdraw from representation, and is subject to discipline, if failure to do so would result in violating ethics rules or other law. MR 1.16(a)(1).
A lawyer is not obliged to withdraw simply because the client suggests a course of conduct that would result in such a violation, but only if the client demands such conduct.
Under the CA RPC, a lawyer must withdraw if he knows or reasonably should know that the representation would result in a violation of the CA RPC or the SBA (but not other law). CARPCRule1.16(a)(2).
Mandatory Withdrawal: Attorney’s Health
Under the Model Rules, a lawyer is required to withdraw when his physical or mental condition materially impairs his ability to represent the client. MR 1.16(a)(2).
Under the CA RPC, a lawyer is required to withdraw when his physical or mental condition renders it unreasonably difficult to carry out the representation effectively. CA RPC Rule 1.16(a)(3).
Mandatory Withdrawal: Client’s Bad Faith
Under the CA RPC, a lawyer also must withdraw from representation if he knows or reasonably should know that a client is asserting a claim or defense or taking an appeal without probable cause and for the purpose of harassing or maliciously injuring any person. CARPC Rule 1.16(a)(1).
Mandatory Withdrawal: Discharge
A client has an absolute right to discharge a lawyer for any reason or no reason at all. A lawyer is required to withdraw from the representation upon being discharged, unless he is ordered by the court to continue representation. The lawyer may recover fees due (or the reasonable value of the work). MR 1.16(a)(3); CA RPC Rule 1.16(a)(4).
If the client has severely diminished capacity, then the client may lack the legal capacity to discharge the lawyer. The lawyer may take reasonably necessary protective action to guard the client’s interests. MR 1.16, cmt. 6.
Permissive Withdrawal: Model Rules
- No Harm to Client (Not in CA)
Even when harm to the client would result, an attorney may withdraw from the following:
- Client persists in a course of action that lawyer reasonably believes is criminal or fraudulent.
- Lawyer learns that the client has used his previous services to perpetrate a crime or fraud.
- The client insists on a course of action that the lawyer finds repugnant or with which the lawyer has a fundamental disagreement;
- The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services (e.g., paying the lawyer’s reasonable fees) and has been given reasonable warning that the lawyer will withdraw unless the obligation is met;
- The representation will result in an unreasonable financial burden on the lawyer;
- The client has made representation unreasonably difficult for the lawyer; or
- Other good cause exists.
Permissive Withdrawal (CA Rules)
Under the CA RPC Rule 1.16(b), withdrawal may be requested only when:
i) The client insists on presenting a claim or defense not warranted under existing law and which cannot be supported by a good-faith argument for an extension, modification, or reversal of existing law;
ii) The client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;
iii) The client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;
iv) The client, by other conduct, renders it unreasonably difficult for the lawyer to carry out the representation effectively;
v) The client breaches a material term of an agreement with or obligation to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;
vi) The client knowingly and freely assents to termination of the representation;
vii) The inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
viii) The lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively (cf. with required termination standard of unreasonably difficult);
ix) A continuation of the representation is likely to result in a violation of these rules or the SBA; or
x) The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
Procedural Requirements of Withdrawal
Notice
A lawyer must give the client reasonable notice before withdrawing, to give the client a reasonable opportunity to obtain new representation. MR 1.16(d); CA RPC Rule 1.16(d).
b. Court approval
If permission for termination of a representation is required by the rules of a tribunal, a lawyer must not terminate a representation before that tribunal without its permission. CA RPC Rule 1.16(c); MR 1.16(c).
c. Court order to continue
A lawyer attempting to withdraw must continue to represent the client if ordered to do so by a court, even if there is otherwise good cause for terminating the representation. MR 1.16(c).
Lawyer’s Duties Upon Termination: Returning Clients Papers and Property
Model Rules: Return all papers and property the client is entitled to. May keep papers relating to the client as security for a fee to the extent it is permitted by law.
CA Rules: Must promptly release all client papers and property at client’s request, whether the client has paid for them or not.
A lawyer in certain criminal matters may be required to retain a copy of a former client’s file for the term of his or her imprisonment.
Lawyer’s Duties Upon Termination: Return Fees
Under Model Rules and CA rules, lawyer must refund any part of a fee paid in advance that has not been earned upon termination.
In CA, this rule doesn’t apply to a true retainer fee, paid solely for the purpose of ensuring the availability of the lawyer for the matter.
Client Fee Liability Upon Termination
Even when a lawyer is discharged, the client must pay the lawyer any earned fees that have not been paid yet.
Fixed/hourly fees: the lawyer can recover in quantum meruit for the value of services rendered, although a cap on the lawyer’s recovery may apply.
Contingent fees: In CA, contingency fees are generally calculated based on the reasonable value of services.
Reasonable Fee
A lawyer must charge fees that are reasonable under the circumstances.
Basis of Lawyer Fee
Factors to determine the reasonableness of the fee:
- Difficulty of the case
- Preclusion of other employment
- Nature of the relationship and fee arrangement
- Expertise of the attorney
- Fee charged in a locality
California Prohibition on Unconscionable Fees
California prohibits illegal or unconscionable fees.
Unconscionability is determined based on all the facts and circumstances existing at the time the agreement is entered into.
Factors considered under CA RPC Rule 1.5(b) in determining whether a fee is unconscionable include:
i) Whether the lawyer engaged in fraud or overreaching in negotiating or setting the fee;
ii) Whether the lawyer has failed to disclose material facts;
iii) The amount of the fee in proportion to the value of the services performed;
iv) The relative sophistication of the lawyer and the client;
v) The novelty and difficulty of the questions involved and the skill needed to perform the legal services properly;
vi) The likelihood, if apparent to the client, that acceptance of particular employment will preclude other employment by the lawyer;
vii) The amount involved and the results obtained;
viii) Time limitations imposed by the client or by the circumstances;
ix) The nature and length of the professional relationship with the client;
x) The experience, reputation, and ability of the lawyer or lawyers performing the services;
xi) Whether the fee is fixed or contingent;
xii) The time and labor required; and
xiii) Whether the client gave informed consent to the fee.
CA Writing Requirement
California requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client, including attorney’s fees, will exceed $1,000.
A copy of the written contract, signed by both parties, must be given to the client or the client’s guardian or representative.
Exceptions to CA Writing Requirement
A writing is not required under any of the following circumstances:
i) The client is a corporation;
ii) The client knowingly states in writing, after full disclosure of the right to an agreement in writing, that he does not want a written agreement;
iii) An arrangement regarding the fee is implied by the fact that the lawyer’s services are of the same general kind as previously rendered to and paid for by the client;
iv) The services were rendered in an emergency to avoid foreseeable prejudice to the client; or
v) A writing is otherwise impracticable.
Contents of the CA Writing Requirement
The written agreement must include:
i) The basis of compensation, including hourly rates, statutory fees, or flat fees, and other applicable standard rates, fees, and charges;
ii) The general nature of the legal services to be provided; and
iii) The contractual responsibilities of the lawyer and the client.
Failure to Comply with CA Writing Requirement
Failure to comply with any of the requirements of SBA § 6148 will render a fee agreement voidable at the option of the client. If the client voids the agreement, then the lawyer is entitled to collect a reasonable fee.
Contingent Fees
Attorneys may charge a fee contingent on the outcome of the case.
Prohibited in criminal cases and domestic-relations cases when the fee is contingent on obtaining a divorce or on the amount of support recovered.
Contingent Fee Requirements (Model Rules)
Under the Model Rules, a contingent-fee arrangement must be in writing, and must include the:
i) Signature of the client;
ii) Calculation methodology of the fee; and
iii) Details of the calculation for expense deductions, including whether such expenses are to be deducted before or after the contingency fee is calculated.
The agreement must clearly outline any expenses for which the client will be liable regardless of whether the client is the prevailing party.
The lawyer must provide a written statement explaining the outcome of the matter at the conclusion of a contingent-fee matter. If the client has prevailed and recovered damages, then the statement must include the amount paid to the client and the method used to determine that amount. MR 1.5(c).
Contingent Fee Requirements (CA Rules)
A lawyer who represents a client on a contingent-fee basis must, at the time of contract formation, provide a duplicate copy of the contract, signed by both the lawyer and the client, or by the client’s guardian or representative, to the client, his guardian, or his representative. The contract must be in writing and must include:
i) A statement of the contingency-fee rate that the client and lawyer have agreed upon;
ii) A statement as to how disbursements and costs incurred in the prosecution or settlement of the claim will affect the contingency fee and the client’s recovery;
iii) A statement regarding the extent, if any, to which the client could be required to compensate the lawyer for related matters arising out of their relationship, but not covered by the contingent-fee contract, which may include any amounts collected for the plaintiff by the lawyer;
iv) If the claim is subject to California’s medical malpractice fee limits, a statement that the statutory limits are the maximum permitted in the contingent-fee agreement and that the lawyer and the client may negotiate a lower rate; and
v) If the claim is not subject to the statutory medical malpractice fees, a statement that the fee is not set by law but is negotiable between the lawyer and the client.
Exceptions to the Contingent Fee Requirement
These rules do not apply to contingent-fee agreements for the recovery of workers’ compensation benefits or for the recovery of claims between merchants involving the sale or lease of goods, services rendered, or money loaned for use in a business or profession.
Failure to Comply with Contingent Fee Requirements
Failure to comply with any of the statutory requirements will render the agreement voidable at the option of the client. If the agreement is voided by the client, though, the lawyer is still entitled to collect a reasonable fee.
