20716667
Description
Flashcards by JD Advising, updated more than 1 year ago
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Created by JD Advising
almost 5 years ago
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| Question | Answer |
| When is a lawyer-client relationship formed? | A lawyer-client relationship is formed when: 1) a person manifests an intent that the lawyer provide legal services and the lawyer agrees; or 2) a person manifests an intent that the lawyer provide legal services and the lawyer fails to make clear that he or she does not plan to, and the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide such services; or 3) a court or tribunal appoints a lawyer to represent a client. |
| What decisions does a client make? What decisions does the lawyer make? | A client decides: 1) the objectives of representation, 2) whether to settle, and 3) the expense to be incurred. 4) In a criminal case a client decides whether to: a) enter into a plea, b) waive a jury trial, or c) testify. A lawyer decides: the technical, legal, and tactical matters of the case. |
| What is a lawyer’s responsibility when a client has diminished capacity? | When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer-client relationship with the client. When the lawyer reasonably believes that the client has diminished capacity and is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action. This includes consulting with individuals or entities that have the ability to protect the client and, in appropriate cases, seeking the appointment of a guardian. |
| When must a lawyer withdraw from representation? | A lawyer must withdraw if: 1) the representation will result in violation of the MRPC or other law (i.e., a crime or fraud), 2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, or 3) the lawyer is discharged by the client (this could be for any reason) or the court permits substitution of an attorney. |
| If a lawyer is discharged in the middle of a matter, what is the client’s monetary obligation to the lawyer? | General rule: The fee paid to the lawyer will be for the reasonable value of the work. (However, if the contract between the attorney and client had a “maximum fee” that is the ceiling on what the attorney can recover.) Contingent fee case: the lawyer’s claim only arises once the contingency passes (e.g., if lawyer agreed to recover 30% of the net recovery, then the client fired the lawyer, then the client settled the case for $100,000, the lawyer could get the reasonable value of his services but no more than $30,000). |
| When may a lawyer withdraw from representing a client? | A lawyer may withdraw if: 1) withdrawal can be accomplished without material adverse effect on the interests of the client; 2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; 3) the client has used the lawyer's services to perpetrate a crime or fraud; 4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; 5) the client fails substantially to pay the lawyer or 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; 6) the representation will result in an unreasonable, financial burden on the lawyer or has been rendered unreasonably difficult by the client; or 7) other good cause for withdrawal exists. |
| What communications must a lawyer make to a client? | A lawyer must: • keep client informed: promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required; • consult with client about objectives: reasonably consult with the client about the means by which the client's objectives are to be accomplished; • reasonably informed: keep the client reasonably informed about the status of the matter, including significant developments; o Exception: in some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. • promptly comply with reasonable requests for information; • explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and • criminal or fraudulent conduct: consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the MRPC or other law. |
| What is the process for a lawyer to withdraw from representation? | A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as: 1) Giving reasonable notice to the client. 2) Allowing time for employment of other counsel. 3) Surrendering papers and property to which the client is entitled. 4) Refunding any advance payment of fee or expense that has not been earned or incurred and returning property. The lawyer may retain papers relating to the client to the extent permitted by other law. |
| What factors are considered in determining whether a fee is reasonable? | The factors to be considered in determining the reasonableness of a fee include the following (basically, consider everything!): (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. |
| When may a lawyer accept a fee paid in advance? | General rule: a lawyer may ask a client to pay in advance, but must return any portion of the amount that is not earned by the lawyer. Exception: a “true retainer” where the client is paying for the lawyer’s availability need not be returned to the client upon conclusion of the representation. |
| What are the requirements of a contingent fee? | • Needs to be in a signed writing by the client: a contingent fee agreement shall be in a writing signed by the client. • Needs to state the method by which the fee is to be determined, including: (1) the percentage that shall accrue to the lawyer in the event of settlement, trial, or appeal; (2) litigation and other expenses to be deducted from the recovery; (3) whether such expenses are to be deducted before or after the contingent fee is calculated; and (4) any expenses for which the client will be liable whether or not the client is the prevailing party. • Needs two writings: in addition to the initial signed agreement, upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. |
| When are contingent fees prohibited? | A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee: 1) in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu of it a. However, a lawyer is allowed to enter into a contingent fee to collect post-judgment balances due under support, alimony, or other financial orders because such contracts do not implicate the same policy concerns; or 2) in a criminal matter for representing a defendant in a criminal case. |
| When may a lawyer split a fee with another lawyer? | General rule: lawyers should not split a fee with another lawyer (referral fees are not permitted under the MRPC). Two exceptions: A division of a fee between lawyers may be made only if: (1) Two lawyers work together on a case and the three requirements below are met: (a) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (b) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (c) the total fee is reasonable. (2) The lawyers are or were a part of the same firm: the lawyers are in the same firm or a former partner or lawyer in the firm gets a payment under a separation or retirement agreement. |
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