PROFESSIONAL RESPONSBILITY HENDERSON FALL 2015
Ch. 2: The Lawyer-Client Relationship – General Points
A. Nature of the Relationship
– Contractual relationship; lawyer operates as both the client’s fiduciary and agent.
B. Creating the Lawyer-Client Relationship
– Relationship arises when:
o Person manifests intent that lawyer provides legal services and the lawyer agrees.
o Person manifests intent to have lawyer represent him, lawyer isn’t clear about not representing client and knows/should know that client is reasonably relying on the lawyer for services.
o Tribunal appoints lawyer.
§ R. 6.2: A lawyer must not seek to avoid such appointment except for good cause:
· Violation of law or disciplinary rule
· Unreasonable financial burden
· Personal inability to represent client effectively
– A lawyer must refuse employment when:
o Client’s motive is harassment
o Unsupportable factual/legal position
o Lawyer not competent
§ Lawyer is too busy/inexperienced
o Strong personal feelings
§ If personal feelings would impair his ability to effectively represent client
o Impaired mental/physical condition
§ Lawyer’s condition
– Duties owed to prospective client:
o Protect the prospective client’s confidential information
o Protect any property the prospective client has provided
o Use reasonable care in giving the person any legal advice
– A lawyer may fulfill his ethical obligation to help make legal service available to all in need by accepting a fair share of unpopular matters.
C. Attorney’s Fees
– Fee and expenses for which the client will be responsible must be communicated to the client, preferably in writing, before or within a reasonable time after commencing representation.
– Factors considered in determining fee reasonableness:
o Time and labor required
o Novelty and difficulty of questions involved
o Skill needed to perform legal services properly
o Likelihood that the work for client will preclude the lawyer from doing fee-paying work for others.
o Fee customarily charged in similar work
o Amount at stake and the results obtained
o Time limitations imposed by client/circumstances
o Nature and length of relationship between lawyer and client
o Experience, reputation and ability of the lawyer
o Whether fee is fixed or contingent (contingent can be higher since it is a gamble)
– Lawyer must not charge for ordinary overhead expenses associated with staffing, equipping and running the office, but may charge for the actual cost of special services, such as photocopying, long distance calls, computer research, special deliveries, secretarial overtime, etc.
– Lawyer may require fee to be paid in advance but must refund any unearned part if fired/withdrawn.
o Retainer fee v. payment in advance (retainer is generally nonrefundable)
– Lawyer may accept property in return for services, provided it does not involve a proprietary interest in the cause of action/subject of litigation.
– Lawyer must not make fee agreement that would curtail services in the middle of the relationship.
– Lawyer may permit payment of legal fee by credit card, bank loan or interest-bearing promissory note.
– Contingent fees are prohibited in:
o Criminal cases
o Domestic relations cases
– Contingent fees must be in a writing signed by client and must state:
o How it is to be calculated
o What litigation and other expenses are to be deducted from recovery
o Whether deductions for expenses will be made before/after fee is calculated
o Expenses client must pay, whether case is won or not.
§ Lawyer must provide written statement overviewing entire case and costs.
– Fee disputes: Charging lien; retention of fees in trust account; arbitration/mediation
– As a general rule, lawyer must not split a legal fee with another lawyer, except:
o Lawyers within one firm
o Separation & Retirement agreements (payments to former partners & associates)
o Certain reasonable splits with other lawyers that worked on the case
o Referral fees
D. Scope of Representation
– A lawyer must abide by the client’s decision regarding:
o Whether to accept a settlement offer
o What plea to enter in a criminal case
o Whether to waive a jury trial in a criminal case
o Whether the client will testify in a criminal case
o Whether to appeal
– If a client insists on the lawyer’s assistance in violating the law/ethics rule, the lawyer must withdraw.
– If a lawyer discovers that a client has begun an illegal course of action and the action is continuing, the lawyer must withdraw.
– When a person with seriously diminished capacity faces imminent and irreparable harm to their health, safety, or financial interest, a lawyer make take legal action on their behalf, despite their inability to establish a lawyer-client relationship or to make or express considered judgments about the matter.
E. Terminating the Lawyer – Client Relationship
– 3 ways: Client fires lawyer; lawyer may withdraw; lawyer must withdraw
– When a client hires a lawyer on a contingent fee basis and then fires him, the lawyer is still entitled to quantum meruit recovery for the reasonable value of the work done up to that point.
– An attorney may withdraw from representing a client for any reason if it can be done without adverse effect on the client’s interests or if the client consents.
o Other situations where attorney may withdraw:
§ Client persists in criminal/fraudulent conduct
§ Client has used attorney’s service to commit past crime/fraud
§ Client’s objective is repugnant/against lawyer’s belief
§ Client breaks promise to attorney
§ Financial hardship for attorney
§ Client will not cooperate
– An attorney who withdraws from a matter must comply with locals laws that require notice to/permission of the tribunal before withdrawal. Upon termination
l be materially and adversely affected by the lawyer’s own interests/the lawyer’s duties to another current/former client or a third person.
– If a conflict of interest is apparent before a lawyer takes on a client’s matter, then the lawyer must not take it on.
o If a conflict becomes apparent only after the lawyer has taken on the client’s matter, and if informed consent of the affected client(s) will not solve the problem, then the lawyer must withdraw.
– Generally, lawyers who practice together in a “firm” are treated as a single unit for conflict of interest purposes.
– A lawyer’s conflict of interest will not be imputed to their firm if the lawyer’s prohibition relates to conflict of interest duties owed to former clients and arises out of their association with a prior firm provided the disqualified lawyer is timely screened from participation in the matter and is apportioned no part of the fee from the matter.
B. Conflicts of Interest – Current Clients
– A lawyer must not represent a client if it creates a concurrent conflict of interest:
o Representation of one client will be directly adverse to another client
o There is significant risk that the representation of one client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another/former client or a third person.
– Despite a concurrent conflict of interest, a lawyer may represent a client if all four of the following conditions are satisfied:
o Lawyer reasonably believes that he can competently and diligently represent each affected client
o The representation is not prohibited by law
o The representation does not involve asserting a claim by one client against another client represented by that lawyer in the same litigation
o Each affected client gives informed consent, confirmed in writing.
– Only informed consent will solve a conflict of interest, meaning that the affected client is aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm them.
– Just as a client can usually fire a lawyer, the client can almost always revoke a previously given consent to a conflict.
– A lawyer must not take on a matter where there is significant risk that the representation of a client will be materially limited by the lawyer’s own personal interests or by the lawyer’s responsibilities to:
o A different client
o Former client
o Third person