Module 2 (Client-Lawyer Relationship)

Question 1

when does a lawyer-client relationship exist?

Answer 1

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

Question 2

when does a lawyer implicitly assent?

Answer 2

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

Question 3

when must a lawyer refuse to represent a client?

Answer 3

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

Question 4

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

Answer 4

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)

Question 5

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

Answer 5

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

Question 6

what are the nature of attorney fees subject to?

Answer 6

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

Question 7

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

Answer 7

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

Question 8

is writing required regarding attorney fees?

Answer 8

it’s preferable but not required

Question 9

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

Answer 9

contingent fee agreements

Question 10

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?

Answer 10

no

Question 11

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

Answer 11

no and the attorney will be subject to discipline

Question 12

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

Answer 12

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

Question 13

what must the attorney NOT charge the client for?

Answer 13

overhead expenses (staffing, equipping, running office)

Question 14

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

Answer 14

Yes

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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

Question 17

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

Answer 17

no

Question 18

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

Answer 18

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

Question 19

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

Answer 19

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

Question 20

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?

Answer 20

no, they must not

Question 21

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

Answer 21

Yes

Question 22

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

Answer 22

Yes

Question 23

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

Answer 23

Yes if it is permitted by law

Question 24

what types of cases are contingent fees prohibited?

Answer 24

1) criminal cases

2) domestic relation cases

Question 25

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?

Answer 25

Yes

Question 26

must a contingent fee be in writing?

Answer 26

Yes and signed by a client

Question 27

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

Answer 27

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

Question 28

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

Answer 28

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

Question 29

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

Answer 29

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

Question 30

can a lawyer split a legal fee with another lawyer?

Answer 30

the general rule says no

Question 31

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

Answer 31

to prevent lawyers from becoming "client brokers" and to discourage excessive fees

Question 32

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

Answer 32

1) they work in the same firm | 2) separation and retirement agreements

Question 33

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

Answer 33

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

Question 34

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

Answer 34

NO

Question 35

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

Answer 35

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

Question 36

when can a lawyer limit their scope of representation?

Answer 36

1) the limitation is reasonable | 2) the client gave confirmed consent

Question 37

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

Answer 37

Yes

Question 38

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

Answer 38

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

Question 39

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

Answer 39

Yes

Question 40

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

Answer 40

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

Question 41

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

Answer 41

withdraw from representation

Question 42

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

Answer 42

make a "noisy withdrawal" that gives outsiders notice of her withdrawal

Question 43

the fact that a lawyer's "noisy withdrawal" will put a client's victim on guard permissible?

Answer 43

Yes, it is actually praiseworthy

Question 44

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

Answer 44

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

Question 45

what is the lawyer considered to the client?

Answer 45

their agent where the lawyer acts on his behalf

Question 46

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

Answer 46

Yes

Question 47

does actual authority need to be explicit or implicit?

Answer 47

either one

Question 48

when does a lawyer have apparent authority?

Answer 48

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

Question 49

how does a client create apparent authority?

Answer 49

with the mere act of retaining a lawyer

Question 50

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

Answer 50

Yes

Question 51

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

Answer 51

No

Question 52

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

Answer 52

Yes

Question 53

when does a lawyer's ACTUAL authority end?

Answer 53

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)

Question 54

when does a lawyer's APPARENT authority end?

Answer 54

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

Question 55

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

Answer 55

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

Question 56

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

Answer 56

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)

Question 57

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

Answer 57

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

Question 58

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

Answer 58

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

Question 59

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

Answer 59

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

Question 60

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

Answer 60

when he reasonably believes that the client has a representative

Question 61

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

Answer 61

No

Question 62

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

Answer 62

promptly inform the client

Question 63

what does "informed consent" mean?

Answer 63

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

Question 64

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?

Answer 64

no

Question 65

what is constitutes as a lawyer making a "material error"

Answer 65

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

Question 66

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

Answer 66

no

Question 67

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

Answer 67

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

Question 68

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

Answer 68

Yes, he must

Question 69

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

Answer 69

1) there was no contract made at the outset | 2) the contract was made after the work was completed

Question 70

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

Answer 70

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

Question 71

how can a client/attorney relationship prematurely end?

Answer 71

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

Question 72

can a client fire a lawyer at any time?

Answer 72

yes with no good reason

Question 73

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

Answer 73

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

Question 74

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

Answer 74

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

Question 75

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

Answer 75

after the contingency comes to pass

Question 76

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

Answer 76

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

Question 77

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

Answer 77

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

Question 78

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

Answer 78

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

Question 79

does an attorney need a reason to withdraw?

Answer 79

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

Question 80

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

Answer 80

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