Term
| Nature of the Lawyer-Client Relationship |
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Definition
| The relationship between a lawyer and a client is contractual. The terms of that contract are generally implied by custom but for the most part can be varied by mutual agreement. The lawyer operates as both the cleint's fiduciary and angent, whith the duties and limitations of those designations. Similarly, the lawyer is subject to the limitations imposed by the laws of agency. |
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Term
| When does a lawyer-client relationship arise? |
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Definition
| Lawyers in the US are FREE to refuse service generally to ANY PERSON for ANY REASON. A lawyer-client relationship arises when: (i) a person maifests an INTENT that the lawyer provide legal services and the lawyer AGREES (ii) a person manifesets INTENT to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake the representation, and the lawyer KNOWS or SHOULD KNOW that hte prospective client is reasonably relying on the lawyer to provide the services; (iii) a tribunal appoints a lawyer to represent a client. |
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Term
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Definition
| A lawyer's assent is implied when he fails to clearly decline representation and the prospective lcinet reasonably relies on the representation. |
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Term
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Definition
| The reasonableness of the reliance is ALWAYS a question of fact. |
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Term
| Rule 6.2: Court Appointments |
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Definition
| Trial and appellate courts often find it necessary to appoint lawyers to represent indigent clients and clients with unpopular causes. A lawyer MUST not seek to avoid such an appoint ment EXCEPT for good cause. |
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Term
| Rule 6.2(a): Vilation of Law or Disciplinary Rule |
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Definition
| A lawyer MUST decline a court appointment if to accept it would require the lawyer to violate a law or disciplinary rule. |
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Term
| Rule 6.2(b): Unreasonable Financial Burden |
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Definition
| A lawyer may seek to be excused from an appointment if to accept it would impose an unreasonable financial butden on the lawyer. |
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Term
| Rule 6.2 (c) Personal Inability to Represent Client Effectively |
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Definition
| A lawyer may seek to be excused from a court appointment IF the lawyer finds the client or the cause so repugnant that hte lawyer-client relationship would be impaired or the lawyer could NOT represent the client effectively. |
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Term
| When does a lawyer have a duty to reject certain cases? |
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Definition
| 1) Client's motive is harassment 2) Unsupportable factual or leagal position 3)Lawyer not competent 4) strong personal feelings 5) impaired mental or physical condition. |
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Term
| Rule 4.4(a): Client's Motive is Harassment |
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Definition
| A lawyer MUST reject any case where he believes that the prospective client's motive is to harass or mailciously injure any person |
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Term
| Rule 3.1: Unsupportable Factual or Legal Position |
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Definition
| A lawyer who is serving as an advocate in a legal proceeding MUST NOT take a position that is either factualy or legally frivilous. |
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Term
| Comments 1-3 Rule 3.1: Unsupportable Factual or Legal Position |
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Definition
| A position i sNOT frivolous if the lawyer can make a good faith argument that the facts are as claimed or that the present law should be changed. A position also is NOT frivolous merely because the lawyer does not have all teh facts at hand at the outset, but expects to develop them during discovery. In a criminal case, he defense lawyer may defend his client to the extent allowed by constitutional law even if the defense would otherwise violate this rule. |
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Term
| Rule 1.1: Lawyer not competent |
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Definition
| A lawyer MUST reject a case if he is too busiy or too inexperienced to handle the matter competently. |
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Term
| Rule 1.16(a)(1) and Rule 1.7(a)(2): Strong Personal Feelings |
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Definition
| If a lawyer's personal felings about a case are so strong that they would impair his ability to effectively represent the client, he must refuse the case. |
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Term
| Rule 1.16(a)(2): Impaired Mental or Physical Condition |
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Definition
| A lawyer MUST decline a case if his mental or physical condition would MATERIALLY IMPAIR his ability to represent the client. |
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Term
| Duties Owed to Prospective Clients-- The Tony Soprano Rule |
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Definition
| When a person discusses with a lawyer the possibility of forming a lawyer-client relationship, and NO SUCH RELATIONSHIP ENSUES, the lawyer has a duty to: (i) protect the prospective client's confidential information, which includes declining to represent other clients in teh same or a related matter if teh confidential information would be harmful to the prospective client; (ii) protect any property the prospective client has given to the lawyer; and (iii) use reasonable care in giving the person any legal advice, such as whether the claim has merit, whether conflicts of interest exist, and when the action must be commenced. |
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Term
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Definition
| The nature and amount of attorney's fees are subjects of contractual agreement between the attorney and the client (except when set by statute or court order). In theory, the parties bargain at arm's length, but in practice cleints are inexperienced with attorneys' fees. Thus, in fee disputes, courts strain to give the benefit of the oubt to the client. |
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Term
| Rule 1.5(a): Discipline for an Unreasonable Fee |
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Definition
| A court will NOT enforce a contract for an unreasoably high attorney's fee or an unearsonably high amount for expenses, and the attorney is subject to discipline for trying to exact such a fee or expense. |
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Term
| Rule 1.5(b): When to Agree on a Fee |
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Definition
| When a lawyer has not regularly represented a client, the basis or rate of the fee and the expenses for which the client will be responsible MUST be communicated to the client, preferably in writing, before or within a reaosnable time after commencing the representation. |
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Term
| Factors to consider in determining the reasonableness of a fee |
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Definition
1) The TIME and LABOR required; 2)the NOVELTY and DIFFICULTY of the questions involved; 3) the SKILL needed to perform the legal services properly;
4) The lieklihood, if apparent to the client, that the work for this cleint will PRECLUDE the lawyer from doing fee-paying work for others; 5) the FEE CUSTOMARILY CHARGED int he locality for similar legal work; 6) the amount at stake and the results obtained for the client; 7) the TIME LIMITATION imposed by the client or the circumstances; 8) the NATURE AND LENGTH OF THE RELATIONSHIP between the lawyer and the client; 9) the EXPERIENCE, REPUTATION, and ABILITY of the lawyer performing the services; 10) whether the fe is FIXED or CONTINGENT, with a contingent fee being higher because it requires the lawyer to take a gamble. |
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Term
| Items a lawyer CANNOT bill a client for |
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Definition
| ordinary overhead expenses associated with staffing, equipping, and running the attorney's office. The attorney cannot bill a client for MORE than her actual cost for services provided by third parties, such as court reporters, travel agencies, and expert witnesses. Lastly, an attorney CANNOT double-bill her time. (bill 2 clients at once) |
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Term
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Definition
| the actual cost to the attorney of special services such as photocopying, long distance calls, computer research, special deliveries, secretarial overtime, etc. The attorney MAY charge a reasonable amount to which the client has agreed in advance. |
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Term
| Rule 1.16(d): Payment in Advance |
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Definition
| A lawyer may require her fee to be paid in advance BUT she MUST refund any unearned part of the advance if she is fired or withdraws. |
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Term
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Definition
| Money that is paid solely to ensure the availability of the lawyer, and teh lawyer who is fired ow withdraws generally need not refund the retainer fee. |
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Term
| Rule 1.5 Comment 4: Property for Services |
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Definition
| A lawyer MAY accept property in return for services (e.g., an ownership interest in a business) provided that it does NOT involve a proprietary interest in the cause of action or subject of litigation contrary to Rule 1.8(i). Such an arrangement is also subject to scrutiny as a conflict of interest may arise because it could be a business transactin between the lawyer and the client. |
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Term
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Definition
| A lawyer MUST not make a fee agreement that could curtail services in the middle of the relationship and thus put the client at a bargaining disadvantage. |
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Term
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Definition
| When a lawyer collects a fee ONLY IF the matter is resolved in the clients' favor. Often the fee is expressed as a percentage fo the client's eventual recovery in the case. However, a contingent fee need not be a percentage of teh amount recovered; an otherwise proper fee may still be proper even if there is no ppol of money from which the fee can be paid. Some states have statutory limits on these fees especially in personal injury and medical malpractice cases. |
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Term
| Rule 1.5(d)(2): Contingent Fees Prohibited in Criminal Cases |
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Definition
| A lawyer is subject to discipline for using a contingent fee arrangement when defending a person in a criminal case. |
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Term
| Rule 1.5(d)(1): Contingent Fee Prohibited in Domestic Relations Cases |
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Definition
| A lawyer is subject to discipline for using a contingent fee in a domestic relations case when the contingency is based on teh securing of a divorce, the amount of alimony or support, or the amount of a property settlement. |
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Term
| Comment 6: Rule 1.5: exception for contingent fees in domestic relations cases |
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Definition
| A lawyer may use a contingent fee in a suit to recover money that is PAST DUE under an alimony or support decree. |
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Term
| Comment 3: Rule 1.5: Contingent Fee MUST be Reasonable |
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Definition
A contingent fee MUST be reasonable in amount; moreover, a lawyer MUST NOT use a contingent fee when teh facts of the case make it UNREASONABLE to do so. (e.g., knowing you could settle but chosing to litigate) |
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Term
| Rule 1.5(c): Writing Requirement for Contingent Fee Arrangements |
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Definition
| A contingent fee agreement MUST be in writing, signed by the client, AND the writing MUST state: (1) how the fee is to be calculated, including the percentage that the lawyer will get if the case is settled before trial, won after trial, or won after appeal; (2) what litigation and other expenses are to be deducted from the recovery; (3) whether deductions for expenses will be made before or after the contingent fee is calculated; and (4) what expenses the client MUST pay, whether or not she wins the case. At the END of a contingent fee case, the awyer MUST give the client a written statement showing the outcome of the case, the remittance to the client, and how the remittance was calculated. |
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Term
| Remedies for Fee Disputes |
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Definition
1) Liens
2) Rentention of Funds in Trust Account
3) Arbitration or Mediation |
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Term
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Definition
| In addition to filing a lawsuit to recover their fees, lawyers have several remedies if a client refuses to pay all or a portion of the fee. Most states recognize a common law or statutory charging lien, under which any recovery obtained for teh client serves as security for the lawyer's fees. Even states that do NOT recognize a charging lien usually recognize such a lien if created by the lawyer and client's express agreement. Many states also permit the lawyer to exercise a retaining lien, under which he can retain documents, funds, and proeprty of the client until his fee is paid, but there is a strong minority view. |
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Term
| Rule 1.15(e): Retention of Funds in Trust Account |
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Definition
| If a lawyer receives funds on behalf of a client from which his fee is to be paid, and the client disputes teh amount of his fee, the lawyer may retain the DISPUTED amount in a clienttrust account until the dispute is resolved. |
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Term
| Comment 9: Rule 1.15: Arbitration or Mediation |
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Definition
| Bar associations in many jurisdictions established arbitration or mediation services to help lawyers resolve fee disputes with their clients. |
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Term
| Fee Splitting with Other Lawyers |
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Definition
| A lawyer MUST NOT split a legal fee with another lawyer. Except: 1)when they are partners and associates in the same firm; 2) the split is a separation or retirement agreement; 3) when two or more lawyers from different firms work together on a case. (Think Valassis case... several firms... they all split the fee) |
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Term
| Rule 1.5(e): Certain Splits with Lawyers Outside Firm |
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Definition
permits two or more lawyers from different firms who work together on a case to submit a single bill to the cleint, and then to split the fee IF the following conditions are met: (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 WRITING THAT DISCLOSES THE SHARE EACH LAWYER RECEIVES. |
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Term
| Rule 7.2(b): Forwarding or Referral Fees |
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Definition
| Referral of cases between lawyers is common, for instance, when teh referring lawyer is too busiy to handle a case or does NOT feel competent to handle a case. A lawyer CANNOT pay another lawyer for recommending or referring a matter. |
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Term
| Rule 1.5(e): Forwarding or Referral Fees |
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Definition
| does NOT permit fee splitting with a referring lawyer who neither assumes responsibility for a matter nor does work on the matter. |
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Term
| Rule 7.2 When Referral Fees are OK |
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Definition
| A lawyer MAY set up a "reciprocal referral" arrangementwith another lawyer or with a nonlawyer professional in which EACH PERSON AGREES to refer clients or customers to the other. The arrange ment MUST NOT BE exclusive, and the lawyer's client MUST be informed of the existence and nature of the arrangement. |
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Term
| Rule 1.2(d): Scope of Representation |
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Definition
The scope and objectives of a lawyer's representation of a client may be defined and limited by agreemnt between the lawyer and client. In the absence of an agreement to the contrary, a lawyer should pursue a client's objectives in all reasonabley available legal ways. However, a lawyer MUST NOT advise or assist a client to commit a ccrime or fraud, BUT a lawyer MAY discuss the legal consequences of a proposed course of action with the cleint. A lawyer MAY help teh client determine the validity, scope and meaning of the law. |
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Term
| Rule 1.2(a): Scope of Representation |
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Definition
| A lawyer also MAY take actions that are IMPLEDLY AUTHORIZED to carry out the representation. |
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Term
| Rule 1.2(a): Decisions to be Made by Client |
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Definition
When a client brings a legal problem to a lawyer, it is the client who must decide what shall be the objectives of the lawyer's work. Thus, it is the client who must make the key decisions that affect the client's substantial legal rights. A lawyer MUST therefore abide by the client's decision regarding the following matters:
(1) whther ot accept a settlement offer; (2) what plea to enter in a criminal case; (3) whether to waive a jury trial in a criminal case; (4) whether the cleint will testify in a crimina case; and (5) whether to appeal. |
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Term
| Rule 1.2(c): Limits on Lawyer's Responsibility and Authority |
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Definition
| a lawyer MAY limit the scope of th representation if the limitation is reasonable under the circumstances, and if the client gives informed consent. E.g., a lawyer might agree to counsel her cleint about a dispute ith the client's landlord, but stipulate that if the dispute has to be arbitrated or litigated, the client will hire another lawyer for that purpose. |
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Term
| Rule 1.16(a)(3) and (b)(4): Disagreements Between Lawyer and Client |
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Definition
| A lawyer and client should try to resolve their disagreements but if they cannot, the lawyer MAY withdraw or the client may fire the lawyer. |
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Term
| Rule 1.16(a)(1): Telling the Client "No" |
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Definition
| When a lawyer discovers her client expects assistance that violates the law or legal ethics rule, the lawyer MUST explain why she cannot do what the client expects. If the lcient insists on teh lawyer's assistance in violating the law or ethics rules, the lawyer MUST withdraw. |
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Term
| Rule 1.2(d): Discovering a Client's Illegal Conduct |
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Definition
| When a lawyer discovers that a client has begun an illegal course of action and the action is continuing, the lawyer MUST NOT assist in the wrongdoing, e.g., by drafting fraudulent documents or suggesting how the wrongdoing can be concealed. |
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Term
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Definition
| When withdrawal alone is not enough- the lawyer MAY have to give outsiders notice of her withdrawal and disaffirms any of her prior opinions, documents, affirmations, or the like that the client is using to carry out the wrongdoing. |
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Term
| Rule 1.14(a) Comments 1& 2: Lawyers Duties in Cases where Client has Diminished Capacity |
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Definition
| The lawyer has a duty, so far as reasonably possible, to maintain a normal lawyer client relationship with her client. The lawyer MUST treat the cleint with attention and respect. Even if the cleint has a guardian or other representative, the lawyer SHOULD, so far as possible, treat teh client as a cliaent, particularly in communicating with the client about significant developments. |
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Term
| Rule 1.14(b): Protective Action and Appointment of Guardian |
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Definition
| When the client has diminished capacity and faces a substantial risk of physical, financial, or other harm, the lawyer MAY take reasonable actions to protect the cleint. These actions include consulting with people or entites that can protect the client, and when appropriate seeking the appointment of a guardian or similar surrogate. |
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Term
| Rule 1.14(c): Protective Action and Appointment of a Guardian |
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Definition
| When taking protective action, the lawyer has the IMPLIED AUTHORITY to reveal the client's confidential information, BUT ONLY to the extent necessary to protect the client. |
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Term
| Comment 9: Rule 1.14- Emergency Legal Assistance to Nonclient with Seriously Diminshed Capacity |
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Definition
| When a person with seriously diminished capacity faces IMMINENT AND IRREPARABLE HARM to her health, safety, or financial interest, a lawyer MAY take legal action on her behalf despite her inability to establish a lawyer-client relationship or to make or express considered judgments about hte matter. However, the lawyer CANNOT act until the person has consulted the lawyer, and the lawyer SHOULD not act UNLESS he reasonably believes the person has no other representative available. Any action undertaken should be limited to that which is reasonably necessary to avoid imminent and irreparable harm. |
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Term
| Comment 10: Rule 1.14: Lawyer's Duties |
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Definition
| In an emergency situation, confidences MAY be disclosed only to the extent necessary to accomplish the intended protective action. The lawyer SHOULD disclose the nature of his relationship with the person to any tribunal or counsel involved in the matter. Furthermore, steps should be taken to regularize the relationship as soon as possible. |
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Term
| Rule 1.0 (e): Informed Consent |
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Definition
| The lawyer MUST promptly inform the cleint of any decision or circumstance that requires the client's INFORMED CONSENT. "Informed Consent" means that the cient agrees to take a proposed course of conduct AFTER the lawyer has sufficiently explained material risks and reasonable alternatives. |
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Term
| Rule 1.4(a)(2)&(3): Information About Status of the Matter and Means to be Used |
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Definition
| The lawyer MUST keep the client REASONABLY informed about the status of the matter and about the means by which the lawyer plans to accomplish the cleint's objectives. If the lawyer MUST make an immediate decision, the lawyer need not consult the client before acting. However, in less urgent situations, the lawyer SHOULD consult with the cleint before acting. |
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Term
| Rule 1.4(a)(4): Request for Information |
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Definition
| If the lawyer keeps the client properly informed of developments in teh matter, the client will NOT often need to ask the lawyer for information. When a client DOES make a reasonable request for information, the lawyer MUST respond promptly. If that is impossible, then the lawyer or a member of her staff SHOULD acknowledge the cleint's request and tell the client when the information will be available. In particular, the client's telephone calls SHOULD be promptly returned or acknowledged. |
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Term
| Rule 1.4 (a)(5): Consultation About Illegal or Unethical Conduct |
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Definition
| If the cleint expects the lawyer to do something that is either illegal or unethical, the lawyer MUST consult with the client and explain why he cannot do what the client wants. |
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Term
| Withholding Information from a Client |
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Definition
| A lawyer MAY delay information to a client if the cleint would be likely to react imprudently to immediate communication. The lawyer MUST NOT, however, withhold information to serve the lawyer's interest or convenience. |
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Term
| Rule 3.4(c): Court Rule or Order |
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Definition
| A court rule or order MAY forbid a lawyer from sharing certain information with a client and the lawyer MUST comply with such a rule or order. (e.g., trade secrets) |
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Term
| Terminating the Lawyer-Client Relationship |
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Definition
| Once established, the lawyer-client relationship ordinarily continues until the completion of the work for which the lawyer was hired. However, the relationship can end prematurely in any of THREE ways: (1) the client can FIRE the lawyer (2) the lawyer MUST withdraw (3) the lawyer MAY withdraw. |
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Term
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Definition
| The law allows a client to fire an attorney at any time, with or without just cause. The client will NOT be held liable for breach of contract, for policy reasons, courts construe all attorney employment contracts as being terminable at will by the client. When the cleint fires the attorney, the client is liable in quantum meruit for the reasonable value of the work the attorney did before being fired. The attorney CANNOT receive more than a flat fee provided for by express contract. When the client hires the lawyer on a contingent basis, then fires the lawyer, the lawyer still has a claim in quantum meruit, however the lawyer's claim does NOT arise until the contingency comes to pass. |
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Term
| Rule 1.16(c): Court Permission to Substitute Attorneys |
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Definition
| When an attorney seeks to withdraw from a case, the court MAY deny the necessary permission; in that event, the attorney MUST continue the representation EVEN IF there is good cause for the withdrawal. |
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Term
| Rule 1.16(a)(2): Mandatory Withdrawal for Disability |
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Definition
| an attorney MUST withdraw if the attorney's mental or physical condition materially imparis the attorney's ability to continue representing the client. |
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Term
| Rule 1.16(a)(1): Mandatory Withdrawal Illegality or Ethical Violation |
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Definition
| If to continue with the representation will require the attorney to violate a law or disciplinary rule, the attorney MUST withdraw. |
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Term
| Rule 1.16(b)(1): Permissive Withdrawal |
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Definition
| An attorney MAY withdraw from representing a client FOR ANY REASON if it can be done without material adverse effect on the cleint's interests or if the client CONSENTS. |
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Term
| Rule 1.16(b)(2): Client Persists in Criminal or Fraudulent Conduct |
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Definition
| A lawyer MAY withdraw from representing a client if the cleint persists in a course of action that involves teh lawyer's services and that the lawyer REASONABLY BELIEVES is criminal or fradulent. NO ASSISTANCE BY ATTORNEY IN CONDUCT UNDER THIS RULE. |
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Term
| Rule 1.16(b)(3): Client Hase Used Attorney's Services to Commit a Past Crime or Fraud |
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Definition
| An attorney MAY withdraw from representing a client if teh client has used the attorney's services to commit a past crime or fraud. |
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Term
| Rule 1.16(b)(4): Client's objective is Repugnant or Against Lawyer's Beliefs |
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Definition
| An attorney MAY withdraw from representing a client if the client insists on taking action that the attorney considers to be repugnant or with which the lawyer has fundamental disagreement. |
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Term
| Rule 1.16(b)(5): Client Breaks Promise to Attorney |
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Definition
| An attorney MAY withdraw from reperesnting a client if the client substantially fails to fulfill an obligation to the attorney and has been warned that the attorney will withdraw unless it is fulfilled. |
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Term
| Rule 1.16(b)(6): Financial hardship for the Attorney |
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Definition
| an attorney MAY withdraw from representing a client if to continue the representation will impose na unreasonable financial burden on the attorney. |
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Term
| Rule 1.16(b)(6): Client will not cooperate |
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Definition
| An attorney MAY withdraw from representing a client if the client has made the attorney's work unreasonably difficult. |
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Term
| Rule 1.16(b)(7): Other good cause |
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Definition
| An attorney MAY withdraw if tehre is other good cause for withdrawal. |
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Term
| Rule 1.16(c): Attorney's Duties Upon Termination of Representation |
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Definition
| An attorney who withdraws from a matter MUST comply with local laws that require notice to or permission of the tribunal before withdrawal. |
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Term
| Rule 1.16(d): Attorney's Duties Upon Termination of Representation |
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Definition
The attorney must take reasonable steps to protect teh cleint's interests, including:
(1) providing the client with REASONABLE NOTICE of the withdrawal;
(2) providing the cleint with TIME to obtain another attorney;
(3) REFUNDING ATTORNEY'S FEES paid in advance and not yet earned and expense advances not yet spent
(4) Returning all papers and property to which the client is entitled. |
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