What are the decisions solely in the hands of the client in the course of an attorney-client relationship?
(AJET)
- Accept/reject settlement offer
- Jury trial waiver
- Entering a plea
- Testifying at trial
How might the scope of the attorney-client relationship be limited?
iii. Attorney may not counsel client to commit crime/fraud
1. BUT can provide legal information about potential consequences
iv. Client cannot insist that attorney violate an RPC
v. Scope of representation may be limited by agreement (e.g. trial only, not appeal) but must be reasonable under the circumstances
vi. Attorney cannot limit malpractice liability to client by agreement unless the client is represented by separate counsel in the negotiation
What are the attorney’s basic duties of competence?
a. Requisite legal knowledge, skill, thoroughness, and preparation necessary for the representation
b. Lack of experience alone isn’t necessarily a violation if extra research can get you there (that extra work… you pay for it)
c. Also requires you to have enough TIME to represent
d. Must communicate any incompetency issues/concerns to client
What’s the key word for the requirement for attorney’s fee?
REASONABLE
What are factors relating to a case to assess the reasonableness of fees?
SANTA:
- Skill required
- Amount involved
- Novelty and difficulty
- Time involved
- Average fee
What are factors relating to an attorney’s skills to assess the reasonableness of fees?
REBER:
- Relationship
- Expertise
- Basis of fee
- Experience
- Result (do you tend to win)
Under what kind of cases may a lawyer and client NOT agree to a contingency fee arrangement?
Criminal cases and domestic matters
What writing(s) must be in place to create a contingency fee agreement?
- First one – on the outset, including the conditions
a. Must be signed by client
b. Include treatment of costs – borne by firm, client? - Second writing: at the conclusion of the case itemizing the recovery/costs/attorney’s share
If the attorney represents a business organization, who is her client and what does she do when she discovers wrongdoing?
i. Remember your client is the org, not the officers (but some of the core decisions-makers may have atty-client privilege with you)
ii. If lawyer becomes privy to wrongdoing, has to report up the ladder (CEO, Board of Directors)
1. If publicly traded, lawyer MAY report to SEC
When MUST an attorney withdraw from a case?
VID:
- Violate RPCs or law (client is asking you to)
- Impaired ability to represent (lawyer gets alzheimers)
- Discharged by client
When MAY an attorney withdraw from a case?
CURBSO:
- Client pursuing criminal action
- Used lawyer to perpetuate crime
- Repugnant to lawyer
- Burden is unreasonable
- Serious client failure (e.g. they don’t pay fee)
- Other good cause
Under what circumstances would fee splitting among lawyers not in the same firm be okay?
a. Proportionate to the services each lawyer renders + client consent (in writing)
b. Non-proportional + both lawyers assume joint responsibility + client’s fee not substantially increased + client consent (in writing)
When may a lawyer break her duty of client confidentiality?
a. To prevent future death/substantial physical harm
i. (Usually is optional to the lawyer, but some states impose an affirmative duty to disclose)
b. Lawyer is being sued by client
c. Crime-fraud exception (b/c has to defend self)
d. If client is publicly-traded corporation and lawyer’s services were used to perpetuate a fraud/crime, SOX applies (SEC rules)
e. Client breaches their fiduciary responsibility to another
When does a law firm need to screen a lawyer - and how do they do it?
If the lawyer is personally disqualified from a matter and it’s not just personal to them (e.g. sexual relationship with client, married to opposing counsel). Then the law firm needs to:
a. Screen that lawyer from participating in/discussing that matter
b. Provide notice to that lawyer’s former client
Under what circumstances may a lawyer commingle her funds with a client’s?
Lawyer can use her funds to pay bank service fees in client’s trust account. END OF LIST.
