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Professional Responsibility/Legal Ethics
West Virginia University School of Law
Hardesty, David C.

PROFESIONAL RESPONSIBILITY OUTLINE

I. THE LAWYER-CLIENT RELATIONSHIP- GENERAL POINTS

NATURE OF THE RELATIONSHIP.

The relationship between a lawyer and client is contractual, and the terms of such contract are derived from custom and mutual agreement. A lawyer is both the client’s fiduciary and agent.

CREATING THE LAWYER-CLIENT RELATIONSHIP.

A lawyer- client relationship arises when a person indicates an intent that the lawyer provide legal services and the lawyer agrees or fails to clearly inform the person that does not wish to present her, resulting in implied assent, or when a tribunal appoints a lawyer to represent a client.

Implied Assent and Reasonable Reliance.

A lawyer’s assent is implied when he fails to clearly decline representation and the prospective client reasonably relies on the representation. Reasonableness is a question of fact.

Court Appointments.

Lawyers have an ethical obligation to help make legal service available to all who need it by accepting a fair share of unpopular matters and unpopular or indigent clients. A lawyer must not seek to avoid court appointments to represent clients except for a good cause.

Examples of good causes are:
i. to represent the client would require the lawyer to violate a law or disciplinary rule,
ii. representing the client would impose an unreasonable financial burden on the lawyer, or
iii. the lawyer’s personal feelings would prevent her from representing the client effectively.

Duty to Reject Certain Cases.

A lawyer must refuse employment when:

the client’s motive is to harass or maliciously injure a person;
the case presents a factually or legally frivolous position (but a good faith argument that the facts are as claimed or that the law should be changed is permissible);
the lawyer is incompetent (or too busy) to handle the matter;
the lawyer’s strong personal feelings ay impair his ability of effective representation; or
the lawyer’s mental or physical condition would materially impair the representation.

Duties Owed to Prospective Client.

If no lawyer-client relationship ensues from a discussion with a prospective client, the lawyer must:
i. protect the person’s confidential informat

vi. the amount at stake and the results obtained;
vii. time limitations;
viii. the experience, reputation, and ability of the lawyer; and
ix. whether the fee is fixed or contingent.

Items that May and May not be Billed.

The attorney must disclose the basis for charges and may not charge the client for ordinary overhead expenses. The attorney may charge the client the actual cost of special services (e.g. computer research, secretarial overtime). Alternatively, the attorney may charge a reasonable amount agreed to in advance.

Collecting and Financing Attorneys’ Fees.

Payment in Advance.

A lawyer may require her fee to be paid in advance, but he must refund any unearned part of the advance of she is fired or withdraws. A lawyer need not return a true retainer fee (i.e. money paid solely to insure the lawyer’s availability).

Property for Services.