The Client-Lawyer Relationship

Question 1

Attorney-client relationship is formed when?

Answer 1

1) When a person manifests an intent that the lawyer provide legal services and the lawyer agrees. “the lawyer’s agreement does not have to be an express statement.”

2) Can be implied when he fails to clearly decline representation and the prospective client reasonably relies on the representation

Question 2

What needs to be looked at to see if a lawyer impliedly accepted a client?

Answer 2

If it was reasonable for the client to believe there is a relationship.
The reasonableness of the reliance is a question of fact.

Question 3

Lawyers in the United States are generally free to refuse…

Answer 3

service to any person for any reason.

Question 4

When must a lawyer reject a potential client?

Answer 4

When the client’s motive is to harass or maliciously injure any person. Thus, a lawyer must reject any case where he believes that harassment is the prospective client’s motive.

Question 5

A lawyer who is serving as an advocate in a legal proceeding must not take a position that is either

Answer 5

factually or legally frivolous.

Question 6

A position is not frivolous if the lawyer

Answer 6

When the lawyer can make a good faith argument that the facts are as claimed or that the present law should be changed. Thus even if a client’s case clearly is unsupported by current law, a lawyer may bring an action arguing for a change of law.

Furthermore, a position is not frivolous merely because the client cannot currently provide enough facts to support a case, as the lawyer can attempt to develop the facts during discovery.

Lawyers have an ethical obligation to help make legal service available to all who need it and thus should not reject a client simply because the client’s cause is unpopular.

Question 7

What will the consequence(s) be if a court finds that anattorney’s fee, agreed to at arm’s length between the client and the attorney, is unreasonably high or an unreasonably high amount for expenses?

Answer 7

The court will not enforce the contract for the fee and the attorney will be subject to discipline.

Question 8

Does a true retainer fee differ from a payment in advance?

Answer 8

Yes. A true retainer fee is money that is paid solely to ensure the availability of the lawyer, and the lawyer who is fired or withdraws generally need not refund the retainer fee. In contrast, when a lawyer requires advance payment for services yet to be rendered, she must refund any unearned part of the advance if she is fired or withdraws.

Question 9

What is the most accurate definition of a contingent fee?

Answer 9

A fee that is collected only if the matter is resolved in the client’s favor

Question 10

How is a contingent fee calculated?

Answer 10

Often, a contingent fee is expressed as a percentage of the client’s eventual recovery in the case, but it need not be; an otherwise proper contingent fee may still be proper even if there is no res, or pool of money, from which the fee can be paid.

Question 11

What type of fee agreements are required to be in writing?

Answer 11

Contingent fees only.

Contingent fee agreements (which must be in writing and signed by the client).

Question 12

When must the lawyer communicate with clients regarding fees?

Answer 12

A lawyer generally must, before or within a reasonable time after commencing a representation, communicate the basis or rate of the fee and the expenses for which the client will be responsible. Although a writing is preferable, it is generally not required, except in contingent fees.

Question 13

Does the lawyer need to communicate the fee arrangement everytime?

Answer 13

If the lawyer regularly represents the client and will be charging the same basis or rate as in other matters then the lawyer need not communicate the fee arrangement each time. However, a lawyer has an ongoing duty to communicate any changes regarding the fee arrangement.

Question 14

What remedies does a lawyer have if a client does not pay the fees?

Answer 14

**Lawyers have several remedies if a client refuses to pay all or a portion of a fee. **

When a lawyer exercises a charging lien, any recovery obtained for the client serves as security for the lawyer’s fees.

When a lawyer exercises a retaining lien, the lawyer holds documents, funds, and property of the client until his fee is paid.

A holding lien is not a recognized term. Most states recognize a common law or statutory charging lien. Even states that do not recognize a charging lien usually recognize such a lien if it was created by the lawyer and client’s express agreement.

Question 15

When lawyers are allowed to split fees?

Answer 15

Lawyers generally should not split a legal fee with other lawyers, subject to a three exceptions.

1) First, current partners and associates within a law firm may split legal fees.
2) Second, a law firm may also make payments to a former partner or associate under a separation or retirement agreement.
3) Finally, two or more lawyers fromdifferent firms can split a fee if: (i) the total fee is reasonable; (ii) the split is in proportion to the services performed by each lawyer, or some different proportion if each lawyer assumes joint responsibility for the matter; and (iii) the client agrees to the split in a writing that discloses the share each lawyer will receive.

If the fee splitting agreement does not fall into one of the above mentioned exceptions, then lawyers are not free to enter into a fee-splitting arrangements; it is not a matter left to the lawyers’ discretion. It is also incorrect to state that lawyers are forbidden from splitting fees with other lawyers.

Question 16

Clients normally defer to their lawyers about issues of

Answer 16

of law, tactics, and strategy. It is the lawyer’s job to help the client determine the validity, scope, and meaning of the law.

Question 17

The client, on the other hand, must make the key decisions that affect

Answer 17

the client’s substantial legal rights. Such as:

A lawyer must therefore abide by the client’s decision regarding whether to appeal a verdict; whether to accept a settlement offer, and whether to** call the client to testify in a criminal case**. Lawyers also normally defer to their clients about questions of expense and concern for third persons who might be affected by a legal tactic.

Question 18

A client can fire his attorney…

Answer 18

At any time, with or without just cause.

Even if there is a signed, written employment agreement between the attorney and the client and the client fires the attorney for no good reason, the client will not be held liable for breach of contract.

When a party wants to fire her attorney for any reason, courts almost always grant the necessary permission, but permission may be denied if a substitution of attorneys would cause undue delay or disruption.

Question 19

If a client fired his attorney, what is the attorney owed for the work already done?

Answer 19

The client is liable to the attorney in quantum meruit for the reasonable value of the work the attorney did before being fired.

If it is based on a contingency fee. However, the lawyer’s claim does not arise until the contingency comes to pass.

Question 20

The use of a contingent fee is usually never permitted in a _________ case.

Answer 20

A lawyer is subject to discipline for using a contingent fee arrangement when defending a person in a criminal case. A lawyer is also subject to discipline for using a contingent fee in a domestic relations case when the contingency is based on the securing of a divorce, the amount of spousal or child support, or the amount of a property settlement.

Key: However, a lawyer may use a contingent fee in a suit to recover money that is past due under a support decree.

Question 21

The use of a contingent fee is usually permitted in a _________ case.

Answer 21

in personal injury, medical malpractice, and similar types of cases.

Question 22

A lawyer may refuse to accept a case appointed to him when?

Answer 22

1) The lawyer’s physical condition would materially impair his ability to represent the client.
2) The lawyer’s personal feelings about the case are so strong that they would impair his ability to effectively represent the client
3) The lawyer is currently too busy with other cases to handle the case competently

Question 23

A lawyer may accept a case despite the fact that

Answer 23

The lawyer does not have all the necessary facts at hand at the outset of the case to be certain that the lawsuit is not frivolous

Question 24

What is generally NOT a factor to consider in determining the reasonableness of an attorney’s fee?

Answer 24

The client’s willingness to agree to the fee

Question 25

Factors considered in determining the reasonableness of a fee are:

Answer 25

i) The time and labor required;
(ii) The novelty and difficulty of the questions involved;
(iii) The skill needed to perform the legal services properly;
(iv) The likelihood, if apparent to the client, that the work for this client will preclude the lawyer from doing fee-paying work for others;
(v) The fee customarily charged in the locality for similar legal work;
(vi) The amount at stake and the results obtained for the client;
(vii) The time limitations imposed by the client or the circumstances;
(viii) The nature and length of the relationship between the lawyer and the client;
(ix) The experience, reputation, and ability of the lawyer performing the services; and
(x) Whether the fee is fixed or contingent (a contingent fee can be higher because it requires the lawyer to take a gamble).

Question 26

What happens to a fee pre-paid to a lawyer if the lawyer is later fired or withdraws from the case?

Answer 26

when a lawyer requires payment in advance, she must refund any unearned part of the advance if she is later fired or withdraws.

Question 27

If, during the course of litigation, a lawyer discovers that a client is using her services to further an illegal course of action, the lawyer must

Answer 27

the lawyer** must not assist in the wrongdoing** and must withdraw from the case.

Withdrawal alone is often not enough—the lawyer may have to make a “noisy withdrawal” in which she gives outsiders notice of her withdrawal and disaffirms any of her own prior opinions, documents, affirmations, or the like that the client is using to carry out the wrongdoing.

The lawyer’s noisy withdrawal may potentially alert the opposing side, but this alone is not a violation of the attorney-client privilege. It would be a violation of the attorney-client privilege to reveal all the details of the client’s impropriety to the court or opposing counsel. In such circumstances, the attorney need not seek advice from the judge on how best to proceed, but should automatically withdraw from the case as discussed above. The lawyer is not free to continue with the case if it is evident that the illegal course of action is continuing.

Question 28

If a client asks a lawyer to do something that is either illegal or unethical, the lawyer must

Answer 28

Consult with the client and explain why he cannot do what the client wants

it would likely be a violation of confidentiality to report a mere request to the authorities. Although a lawyer should act as a zealous advocate on behalf of his client, this ideal does not extend to illegal or unethical conduct.

Question 29

When would it be okay for an attorney to withdraw from a case?

Answer 29

An attorney may withdraw from representing a client if the client persists in a course of action that involves the attorney’s services and that the attorney reasonably believes is criminal or fraudulent. Note that the lawyer is required to withdraw only if the client’s criminal or fraudulent conduct involves some actual assistance by the lawyer.

An attorney may withdraw from representing a client if the client insists on taking action that the attorney considers repugnant or with which the lawyer has a fundamental disagreement.

Finally, an attorney may also choose to withdraw from representing a client if the client has made the attorney’s work unreasonably difficult by refusing to cooperate with the attorney

Question 30

A lawyer may properly bill a client for:

Answer 30

1) Travel time to and from depositionsTravel time to and from depositions - no response given

2) Incidental costs such as photocopying, long distance calls, and computer research associated with the case.

3) Services provided by third parties, such as court reporters, travel agents, and expert witnesses

Question 31

A lawyer may not bill a client for:

Answer 31

Overhead expenses associated with staffing, equipping, and running the attorney’s office

Question 32

May a lawyer accept property as payment for services?

Answer 32

Yes, provided that it does not involve a proprietary interest in the cause of action or subject of litigation

Such an arrangement is subject to scrutiny as a conflict of interest because it may be a business transaction between the lawyer and the client, but it is not always impermissible

Question 33

Two lawyers from different law firms want to work together on a matter for a client. What is NOT ALWAYS REQUIRED for a proper fee splitting arrangement between lawyers at a different firm?

Answer 33

The split must be in proportion to the services provided by each lawyer.

because it can also be: some different proportion if each lawyer assumes joint responsibility for the matter.

Question 34

Two lawyers from different law firms want to work together on a matter for a client. What is ALWAYS REQUIRED for a proper fee splitting arrangement between lawyers at a different firm?

Answer 34

1) The client must agree to the split in a writing that discloses the share each lawyer will receive.

2) The total fee must be reasonable

Question 35

What is a lawyer’s duty regarding confidential information supplied by a client with diminished capacity who faces a risk of substantial physical, financial, or other harm?

Answer 35

The lawyer has implied authority to reveal the client’s confidential information, but only to the extent necessary to protect the client.

These actions include consulting with people or entities that can protect the client, and, when appropriate, seeking the appointment of a guardian or similar surrogate.

The lawyer remains under a general ethical duty to keep the client’s information confidential, but NOT at all times, such as the case here when the client is facing a risk of substantial physical, financial, or other harm. It is not necessary for the lawyer to petition a court for express authority to reveal the information, because in such a situation the lawyer has the implied authority to act as necessary to protect the client from substantial harm. It is incorrect to state that a client with diminished capacity has no expectation of privacy. The lawyer has a duty, so far as reasonably possible, to maintain a normal lawyer-client relationship with the client. The lawyer must treat the client with attention and respect

Question 36

When may a lawyer properly choose to delay transmission of pertinent information to her client?

Answer 36

When the lawyer believes that the client would be likely to react imprudently to the information.

For example, if a lawyer fears a client may become suicidal upon hearing the information, the lawyer may choose to keep the information from the client until the client is in a different mental state

Question 37

When may a lawyer unable to withhold pertinent information to her client?

Answer 37

The lawyer must not, however, withhold information from a client solely to serve the lawyer’s or a third person’s interest or convenience.

Question 38

A lawyer( ) withdraw from representing a client if the representation will require the lawyer to violate a law or disciplinary rule; a lawyer ( ) withdraw from a case if a client’s criminal or fraudulent conduct involves some assistance by the lawyer.

Answer 38

Must; must

Question 39

If a lawyer encounters a nonclient with seriously diminished capacity in a situation that risks imminent and irreparable harm to the nonclient’s health, safety, or financial interest, the lawyer

Answer 39

May take legal action on behalf of the nonclient as if that person were his client, but should not seek any compensation for his services.

Question 40

A lawyer must abide by the

Answer 40

client’s decision with regard to certain substantive matters in the case, including pleas.

Question 41

f an adversary offers to settle a civil case, or offers a plea bargain in a criminal case, the lawyer must

Answer 41

Promptly convey the offer to her client unless the client has previously instructed the lawyer that an offer on those terms is acceptable or unacceptable or has authorized the lawyer to accept or reject such an offer.

Question 42

A lawyer MUST withdraw from a case when:

Answer 42

1) the client fires the lawyer;
2) the representation would require the lawyer to violate the law or the rules of professional conduct; or
3) The lawyer’s physical or mental condition materially impairs their ability to represent the client.

Question 43

When an attorney seeks to withdraw from a case and the court denies the necessary permission, the attorney has

Answer 43

has to continue the representation. This is true even if the lawyer attempted to withdraw on a mandatory ground.

Question 44

A lawyer may withdraw from representing a client if the client

Answer 44

1) if the client substantially fails to fulfill an obligation to the lawyer (paying their legal bills for example) and has been warned that the lawyer will withdraw unless it’s fulfilled.
2) when withdrawing can be accomplished without material adverse effect on the interests of the client. a lawyer may withdraw for any reason if it wouldn’t materially harm the client’s interests, but, if another permissive ground is present, the lawyer may withdraw even if it would materially harm the client’s interests.

Question 45

A lawyer may limit the scope of the representation if

Answer 45

if the limitation is reasonable under the circumstances and the client gives informed consent.

Question 46

What are the grounds requiring the lawyer to reject representing the client?

Answer 46

1) The client wants to use the lawyer’s services to commit fraud.
2) Accepting the case would create a conflict of interest with an existing client.
3) The case would require the lawyer to assert a frivolous claim.

Question 47

What is not a ground requiring the lawyer to reject representing the client?

Answer 47

Accepting the case would create substantial financial hardship for the lawyer

Question 48

A lawyer represented a defendant in a criminal case.

What decisions require the defendant’s consent?

Answer 48

In a criminal case, the client has exclusive authority to decide whether to accept a plea agreement or proceed to trial, whether to waive a jury trial, whether to testify at trial, and whether to appeal.