What is considered competent representation?
Possessing the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Who has the ultimate authority to determine the purposes of litigation?
The client. Rule 1.2(a).
Who decides the objectives of representation and what do these include?
The client. Includes whether or not to settle (civil cases) and whether to plead, waive jury trial, or testify (criminal trial).
When can a lawyer limit the scope of representation?
If the limitation is reasonable under the circumstances and the client gives informed consent.
Who has the right to determine the technical, legal, & tactical means to pursue the objective?
The attorney, but must consult with the client and if there is a disagreement, seek a mutually acceptable solution.
Who has the right to decide expenses and dealings with third persons who might be adversely affected? (ex. witnesses)
The client. Rule 1.2, comment 2.
If the client has a fundamental disagreement with the lawyer's objectives and vice versa, what actions can either take?
The client may discharge the lawyer and vice versa. See Rules 1.16(b)(4) and 1.16(a)(3) for more.
Can the scope of representation be limited?
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 is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
If a client proposes a criminal or fraudulent course of conduct, what is the lawyer allowed to do under the Rules?
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.
What must a lawyer do if they become aware that their client is acting criminally or fraudulently?
The lawyer must stop assisting the client and withdraw from the representation.
⚠️ 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.
Can a lawyer disclose a client's wrongdoing?
No, unless allowed by Rule 1.6.
True or false: When a client is of diminished capacity, the lawyer does not need to maintain a normal lawyer-client relationship.
False. The lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
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.
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?
Take reasonably necessary protective action, including:
- Consulting with family members or other individuals/entities that have the ability to take action to protect the client;
- Seeking the appointment of a guardian; and
- Using a reconsideration period to permit clarification or improvement of circumstances
When taking protective action for a client with diminished capacity, can a lawyer reveal protected information about the client?
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.
A lawyer cannot charge unreasonable fees. What factors determine whether a fee is reasonable?
The factors determining whether a fee is reasonable are:
- The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- The fee customarily charged in the locality for similar legal services;
- The amount involved and the results obtained;
- The time limitations;
- The nature and length of the professional relationship with the client;
- The experience, reputation, and ability of the lawyer or lawyers performing the services; and
- Whether the fee is fixed or contingent
When and how should the fees be communicated to a client?
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).
What is a contingent fee arrangement? Are they allowed in all types of cases?
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
When can fees be divided among lawyers who are not in the same firm?
Only if:
- The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
- The client agrees to the arrangement, including the share each lawyer will receive;
- The agreement is confirmed in writing; and
- The total fee is reasonable
Can a lawyer seek reimbursement for the cost of in-house services or expenses (ex. copying or telephone charges)?
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.
What should a lawyer do if there are developments in the case that will substantially increase previously agreed upon fees?
Provide a revised estimate to the client. Rule 1.5, comment.
Are lawyers allowed to require advance payment of fees? (e.g. a retainer)
Can a lawyer accept property as payment for services?
Yes, as long as it does not involve acquisition of a proprietary interest in the subject matter of the litigation.
⚠️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).
What should the lawyer do when there is a fee dispute?
Consider using mediation or an established fee arbitration service (recommended but not required, unless there is already a mandated procedure in place by law).
Can a lawyer advance court costs and other expenses of litigation and make payment contingent on the outcome of the case?
Yes, but if the client loses, the lawyer absorbs the costs. Rule 1.8(e)
Can a lawyer representing an indigent client pay court costs and expenses of litigation on behalf of the client?
Yes. Rule 1.8(e)(2).
When is withdrawal from representation mandatory?
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The representation will result in violation of the rules of professional conduct or other law;
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The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
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The lawyer is discharged.
The representation will result in violation of the rules of professional conduct or other law;
The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
The lawyer is discharged.
When may a lawyer withdraw from representing a client?
A lawyer may withdraw from representing a client when:
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Withdrawal will not result in material adverse effects on client interests;
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Client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
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Client has used the lawyer's services to perpetrate a crime or fraud;
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Client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
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Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
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Representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
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Other good cause for withdrawal exists.
What steps should a lawyer take upon termination?
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
⚠️ Note: The lawyer may retain papers relating to the client to the extent permitted by other law.
When can a client terminate the attorney-client relationship?
At any time, with or without cause, subject to liability for payment for the lawyer's services.
⚠️ Note: If the client has diminished capacity, the lawyer may need to take protective action if discharge would seriously adverse the client's interest. See Rule 1.14.
When can a lawyer or a law firm sell or purchase a law practice?
If:
- The seller ceases to engage in the private practice of law entirely, or in the geographic location or area of practice;
- The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
- Seller gives written notice to each of the seller's clients regarding:
- Proposed sale;
- Client's right to retain other counsel and/or take possession of their file; and
- If client does not take any action or object within 90 days, client's consent will be presumed. (If client cannot be notified, case will only be transferred upon court order).
- Client fees shall not be increased due to the sale.