The Attorney-Client Relationship Flashcards
(24 cards)
Rule 1.1: Duty of Competence
At a minimum, a lawyer should
- gather sufficient facts
formulate the material issues raised
- develop a strategy in collaboration with the client
- undertake actions in a timely and effective manner
Competence - Requisite Skill is Determined by:
- The complexity and specialized nature of the matter
- The lawyer’s general experience
- The lawyer’s training and experience in the field in question
- The preparation and study the lawyer is able to give the matter
- Whether it’s feasible to refer matter, or consult with a lawyer w/ more experience in field
- Most matters do not require specialized skill, and every lawyer is capable of competence either through study or association
- Lack of knowledge or skill really means a failure to seek it
Imagine we have to memorize this
How is the Duty of Competence Enforced? - 3 Ways
(1) Disciplinary Action
(2) Malpractice Action
(3) Ineffective Assistance of Counsel Claim under the 6th Amendment
Disciplinary Action
- A single incident is sufficient to receive discipline
- Special circumstances are irrelevant in determining a violation (per se). But they are relevant in determining the level of sanctions
Negligence Malpractice Action
(1) Duty of Care to Clients (and any third parties intended to benefit from the representation)
(2) Breach of Duty of Care
- the standard of care is the competence normally exercised by attorneys in similar situations (reasonably prudent atty standard)
(3) Causation
- the injury would not have occurred but for the lawyer’s negligence
- client has to show that they would have won the underlying matter
(4) Damages
- must prove the value of the underlying action
- A violation of the model rules does itself generally does not establish causation for a legal malpractice action
- but it is still relevant evidence
Ineffective Assistance of Counsel - Strickland v. Washington
Defendant has to show two things to secure a new trial:
(1) The lawyer’s conduct fell below the range of professional acceptable conduct; and
(2) The client suffered prejudice in the sense that the result of the proceeding would have been different
- Situations where prong 2 (prejudice) is assumed:
- D instructs counsel to file appeal and they fail to do so
- DC at trial suffers from an obvious conflict of interest
- Representation at trial is so deficient that a true adversarial process did not result (counsel was drink, slept thru substantial parts of the trial, etc.)
IAC is only available to criminal defendants
Legal Fees - Types
- Flat
- Hourly
- Contingent
- Value Based Billing
- Hybrid
Flat Fee
Any fee that a lawyer charges to a client to complete a given service
Iowa v. Apland
Lawyers must deposit all advance fee payments into a client trust account
How much of a flat fee is the lawyer required to refund?
- Model 1: must refund the % of the unperformed work. Based on lawyer’s GF estimates
- Model 2: Charge by the hour for the work already done. But retainer agreement needs to explicitly state the hourly rate
Hourly Rate Fees
Time = Money
Contingency Fees
Fee where the lawyer only earns the the fee if the desired outcome is reach
- Prohibited in criminal and matrimonial cases
Contingency Fees MUST
- BE IN WRITING
State how the fee is to be calculated - state what expenses are to be deducted
- state whether deduction will be made before or after the contingent fee is deducted
- state what expenses the client must pay, regardless of outcome
- Provide a written statement showing the outcome of the case, the remittance to the client and how it was calculated
Value Based Billing
Fee is calculated bases on the value of the matter to the client (as perceived by the client & lawyer)
3 types:
(1) Lawyer and client negotiate the value of a project at the beginning of a matter
(2) Lawyer and client negotiate the value at the end of the matter
(3) Lawyer unilaterally determines the value at the end of the matter
Hybrid Fees
Combination of two or more of the fee types
Rule 1.5(a): Amount of Fee
Must be reasonable - determining factors:
- Time & labor, novelty & difficulty, skill required
- preclusion of other employment by attorney
- fee customarily charged in locality
- amount involved and results obtained
- time limitations
- nature and length of relationship with client
- experience and reputation of the lawyer
- whether fee is fixed or contingent
Fee Splitting is permitted when:
(1) Total fee is reasonable;
- the split is in proportion to the serviced performed by each lawyer OR each lawyer assumes joint responsibility for the matter
(2) The client agrees to the split in writing that discloses the share each lawyer receives
Commingling Funds
Lawyers are required to exercise the most extreme care when dealing with client property and must not mix them with their own funds
- Have to have a separate client trust account and ensure that accounting is up to date
- Commingling funds is aa per se offense - a violation occurs even if the lawyer was merely negligent
Formation of Attorney-Client Relationship - General Rule
Relationship exists as long as a reasonable person in the client’s shows would interpret the conduct of the lawyer as an agreement to provide legal services to the client
Client’s perception is all that matters
Togstad v. Vesley, Otto, Miller & Keefe
Rule: At the very least if you are going to give a legal opinion, you have to at least take steps to confirm that your opinion has some basis in fact
- Whether or not an attorney/client relationship exists is based on the image of it that the client holds - the client’s perception is the one that matters
- At a minimum, if you meet with a potential client and indicate that any sort of action will be done - if you don’t take those steps, you can be liable - so have to at least do what you told the client you were going to do.
- As a matter of prudence, lawyer has the burden of clarifying whether or not an attorney client relationship exists and what the scope of the relationship is
Allocation of Authority (Rule 1.2)
Objectives are controlled by the client
Means are controlled by the lawyer (after consulting with the client)
Decisions Reserved to Client
Civil Matters:
- lawyer must abide by client’s decision whether to accept or reject an offer of settlement
Criminal Matters: lawyer must abide by a client's decision as to: - whether to enter a plea - whether to waive a jury trial - whether to testify - whether to appeal
*Lawyer still had to advise the client about these decisions
Terminating the Attorney- Client Relationship: Mandatory Withdrawal -1.16(a)
- ethical rule would be violated
- physical or mental condition materially impairs lawyer’s ability to represent client
- client fires attorney
Terminating the Attorney- Client Relationship: Permissive Withdrawal -1.16(b)
Can withdraw for any reason as long as it can be accomplished without materially adverse effect to the client
Even with materially adverse effect if:
- client pursues illegal course or used lawyer’s services to perpetrate crime or fraud
- client pursues an objective the lawyer finds repugnant or with which the lawyer has a fundamental disagreement
- client fails to pay fees
- attorney would suffer unreasonable financial burden
Attorneys Duty Upon Termination
- If the matter is pending before a tribunal, the attorney must have permission of the tribunal
- Attorney must take steps to ensure no prejudice to client
have to protect client’s interests:
- give reasonable notice to client
- allow time for employment of other counsel
- surrender papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred
- lawyer may retain papers relating to the client to the extent permitted by other law
