The Lawyer-Client Relationship

Question 1

What is considered competent representation?

Answer 1

Possessing the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.1

Question 2

Who has the ultimate authority to determine the purposes of litigation?

Answer 2

The client.

Rule 1.2(a).

Question 3

Who decides the objectives of representation and what do these include?

Answer 3

The client. Includes whether or not to settle (civil cases) and whether to plead, waive jury trial, or testify (criminal trial).

Rule 1.2(a)

Question 4

When can a lawyer limit the scope of representation?

Answer 4

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

Rule 1.2(c)

Question 5

Who has the right to determine the technical, legal, & tactical means to pursue the objective?

Answer 5

The attorney, but must consult with the client and if there is a disagreement, seek a mutually acceptable solution.

Rule 1.2, comment 2

Question 6

Who has the right to decide expenses and dealings with third persons who might be adversely affected?

(ex. witnesses)

Answer 6

The client.

Rule 1.2, comment 2.

Question 7

If the client has a fundamental disagreement with the lawyer’s objectives and vice versa, what actions can either take?

Answer 7

The client may discharge the lawyer and vice versa.

See Rules 1.16(b)(4) and 1.16(a)(3)

Question 8

Can the scope of representation be limited?

Answer 8

Yes, by either party as long as the limitation is reasonable under the circumstances.

Limitation does not exempt a lawyer from the duty to provide competent representation, but it is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2, comment 7

Question 9

If a client proposes a criminal or fraudulent course of conduct, what is the lawyer allowed to do under the Rules?

Answer 9

A lawyer cannot counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.

But, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel client as to the validity, scope, meaning or application of the law.

Rule 1.2(d)

Question 10

What must a lawyer do if they become aware that their client is acting criminally or fraudulently?

Answer 10

The lawyer must stop assisting the client and withdraw from the representation.

Rule 1.2, comment 10

⚠️ In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, or affirmation. See Rule 4.1.

Question 11

Can a lawyer disclose a client’s wrongdoing?

Answer 11

No, unless allowed by Rule 1.6.

Question 12

True or False:

When a client is of diminished capacity, the lawyer does not need to maintain a normal lawyer-client relationship.

Answer 12

False

The lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Rule 1.14(a)

For example, the client may wish to have family members participate in discussions with the lawyer. The lawyer must keep the client’s interest foremost and look to the client, and not family members, to make decisions on the client’s behalf. Rule 1.14, comment 3.

Question 13

What actions can a lawyer take if she reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest?

Answer 13

• Consult with family members or others who can help protect the client
• Seek appointment of a guardian
• Use a reconsideration period to allow clarification or improvement in circumstances

These are examples of reasonably necessary protective actions under Rule 1.14(b)

Question 14

When taking protective action for a client with diminished capacity, can a lawyer reveal protected information about the client?

Answer 14

Yes, the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

The lawyer should determine whether it is likely that the person consulted will act adversely to the client’s interests before discussing matters related to the client.

Rule 1.14(c)

Question 15

A lawyer cannot charge unreasonable fees. What factors determine whether a fee is reasonable?

Answer 15

• Time and labor required, novelty and difficulty of the legal issues, and skill needed
• Impact on the lawyer’s ability to take other cases (if known to the client)
• Customary fee charged locally for similar services
• Amount involved and results obtained
• Time limitations imposed by client or circumstances
• Nature and length of the relationship with the client
• Experience, reputation, and ability of the lawyer(s)
• Whether the fee is fixed or contingent

Rule 1.5(a)

Question 16

When and how should the fees be communicated to a client?

Answer 16

When: Before or within a reasonable time after commencing the representation (except if the client is a current client and the fees haven’t changed)

How: Preferably in writing. Must explain the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible (court costs, etc).

Rule 1.5(b)

Question 17

What is a contingent fee arrangement? Are they allowed in all types of cases?

Answer 17

Allows the client to pay fees only if a certain outcome or result is reached.

Not allowed in certain types of cases:

• Domestic relations cases, when the payment is contingent upon securing a divorce or the amount of alimony or support; or
• Criminal cases where the lawyer is representing the defendant

Rule 1.5(c-d)

Question 18

When can fees be divided among lawyers who are not in the same firm?

Answer 18

Only if:

1. The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
2. The client agrees to the arrangement, including the share each lawyer will receive;
3. The agreement is confirmed in writing; and
4. The total fee is reasonable

Rule 1.5(e)

Question 19

Can a lawyer seek reimbursement for the cost of in-house services or expenses?

(ex. copying or telephone charges)

Answer 19

Yes, either by charging a reasonable amount that the client agreed to in advance or an amount that reasonably reflects the cost incurred by the lawyer.

Rule 1.5, comment 1

Question 20

What should a lawyer do if there are developments in the case that will substantially increase previously agreed upon fees?

Answer 20

Provide a revised estimate to the client.

Rule 1.5 Fees - comment.

Question 21

Are lawyers allowed to require advance payment of fees?

(e.g. a retainer)

Answer 21

Yes, but they must return any unearned portion.

Rule 1.16(d)

Rule 1.5, comment 4

Question 22

Can a lawyer accept property as payment for services?

Answer 22

Yes, as long as it does not involve acquisition of a proprietary interest in the subject matter of the litigation.

Rule 1.5, comment 14

⚠️Note: Proprietary interest is allowed if it is a lien authorized by law or reasonable contingent fee agreement in civil case. See Rule 1.8 (i).

Question 23

What should the lawyer do when there is a fee dispute?

Answer 23

Consider using mediation or an established fee arbitration service.

Recommended but not required, unless there is already a mandated procedure in place by law.

Rule 1.5, comment 9

Question 24

Can a lawyer advance court costs and other expenses of litigation and make payment contingent on the outcome of the case?

Answer 24

Yes, but if the client loses, the lawyer absorbs the costs.

Rule 1.8(e)

Question 25

Can a lawyer representing an **indigent client** pay court costs and expenses of litigation on behalf of the client?

Answer 25

Yes ## Footnote [Rule 1.8(e)(2)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/)

Question 26

When is withdrawal from representation **mandatory**?

Answer 26

1. The representation will result in **violation of the rules** of professional conduct or other law; 2. The lawyer's **physical or mental condition materially impairs** the lawyer's ability to represent the client; or 3. The lawyer is **discharged.** ## Footnote [Rule 1.16(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation/)

Question 27

When **may** a lawyer withdraw from representing a client?

Answer 27

1. **No material harm** to client interests 2. Client **persists** in action the lawyer **reasonably believes** is **criminal or fraudulent** 3. Client used the lawyer’s services to **commit crime or fraud** 4. Client insists on action the lawyer finds **repugnant** or has a **fundamental disagreement** with 5. Client **fails** to meet obligations and has been **reasonably warned** 6. Representation causes **unreasonable financial burden** or becomes **unreasonably difficult** 7. **Other good cause** exists ## Footnote [Rule 1.16(b)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation/)

Question 28

What steps should a lawyer take upon **termination**?

Answer 28

The lawyer must take steps to the extent reasonably practicable to protect a client's interests, such as: * Giving **reasonable notice** to the client; * Allowing time for **employment of other counsel**; * **Surrendering papers and property** to which the client is entitled; and * **Refunding any advance payment of fee** or expense that has not been earned ## Footnote ⚠️ Note: The lawyer may retain papers relating to the client to the extent permitted by other law. [Rule 1.16(d)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation/)

Question 29

When can a **client** terminate the attorney-client relationship?

Answer 29

**At any time**, with or without cause, subject to liability for payment for the lawyer's services. ## Footnote [Rule 1.16, comment 4](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation/comment_on_rule_1_16_declining_or_terminating_representation/) ⚠️ Note: If the client has diminished capacity, the lawyer may need to take protective action if discharge would seriously affect the client's interest. See [Rule 1.14](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_14_client_with_diminished_capacity/).

Question 30

When can a lawyer or a law firm **sell or purchase a law practice?**

Answer 30

1. The seller **ceases to engage in the private practice of law entirely**, or in the geographic location or area of practice; 2. The entire practice, or the entire area of practice, is **sold to one or more lawyers or law firms**; 3. Seller gives **written notice** to each of the seller's clients regarding the sale 4. Client fees **shall not be increased** due to the sale. ## Footnote Written notice must inform the client of: * The proposed sale * The client’s right to retain other counsel or obtain their file * That consent is presumed after 90 days unless the client objects (if the client cannot be notified, transfer requires court order) [Rule 1.17](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_17_sale_of_law_practice/)

Question 31

When can someone **other than the client** pay for legal representation? ## Footnote (ex. father paying legal fees for 19-year-old)

Answer 31

**Only if**: 1. The client gives **informed consent**; 2. There is **no interference** with the attorney’s professional judgment; and 3. Attorney-client **confidentiality is preserved** ## Footnote [Rule 1.8(f)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/)

Question 32

Is an attorney **required** to advise the client to seek **independent counsel** before signing an arbitration agreement?

Answer 32

No, but attorneys are required to advise clients as to the **scope and effect** of the arbitration agreement.

Question 33

Are attorneys required to contact former clients about **new regulations**?

Answer 33

No

Question 34

Can an attorney enter into a **reciprocal referral agreement**?

Answer 34

Yes, as long as it is **not exclusive** or for an **infinite** duration. ## Footnote [Rule 7.2, comment 8](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_2_advertising/comment_on_rule_7_2/)