BarMax MPRE Study Guide

II. The Client-Lawyer Relationship (10% to 16%) A. Formation of Client-Lawyer Relationship a lawyer-client relationship is formed when the client intends to seek professional advice from the lawyer and the lawyer either accepts or fails to clearly decline the representation (i.e. implied assent). 1. No Duty to Accept Representation the general rule is that an attorney has no duty to accept representation. An attorney is free to accept or reject any case. ! Exceptions o Court Appointed an attorney has an ethical duty to accept representation if the attorney was appointed by the court unless there is good cause. ! Good Cause? Cannot Handle Matter Competently good cause exists if the lawyer could not handle the matter competently. Violate Law or Ethical Rule representation of the client would require the attorney to violate a law or ethical rule (e.g., improper conflict of interest). Unreasonable Financial Burden representation would impose unreasonable financial burden on the lawyer. OR Personal Feelings the lawyers personal feelings would prevent effective representation. o Defenseless or Oppressed every lawyer has a professional responsibility to provide legal services to those unable to pay so an attorney should accept the cases of the defenseless or oppressed if the only reason to refuse is selfish. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. o Pro Bono Work the ABA encourages 50 hours of pro bono work per year for indigent clients.

2. Duty to Reject a lawyer must reject representation if: ! Violate Law or Ethical Rule a lawyer must reject representation if the accepting the representation would require the lawyer to violate a law or ethical rule (note: if the attorney can effectively represent the client without violating law or ethical rule, the attorney may accept representation even if the client has asked the lawyer to break the law). Motive = Harass or Maliciously Injure a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. Frivolous Claim or Defense knowingly pursuing a factually or legally frivolous claim or defense violates the duty of candor and fairness so withdrawal is mandatory. o Exception: Law Against Lawyers Position a claim is not frivolous just because the law is against the lawyers position if there is a good faith effort to change the law with the representation. Lawyer Incompetent as part of the duty of competence, a lawyer must be knowledgeable regarding the subject matter of the representation. A lawyer without prior experience in a field of practice may still take a case as long as the lawyer either:

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BarMax MPRE Study Guide

o Educated Without Undue Expense or Delay to Client a lawyer may accept representation if the lawyer reasonably believes she can do the work to become educated and competent without any undue expense or delay to the client. OR o Associate with Competent Counsel associate with counsel competent in the area, who can help assist the lawyer. ! Personal Feelings a lawyer must reject representation when her personal feelings would prevent effective representation. Attorneys Mental or Physical Condition a lawyer must reject representation when her mental or physical condition will materially impair the representation.

B. Scope, Objective & Means of the Representation a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by the duty to communicate (see 2. below), shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. 1. Scope of Representation in general, clients are permitted to make any decisions regarding the ends of the litigation, while lawyers make decisions regarding the means of the litigation, such as legal strategy. ! Attorneys Decisions = Means an attorney has the authority to make most of the decisions relating to the means and methods by which the clients objectives and goals will be achieved (i.e. what arguments to make, what motions to file, what witnesses to call, etc.) o Criminal or Fraudulent Conduct a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Clients Decisions = Ends the client has the authority to make any decisions regarding the ends (i.e. the objective and goals) of the litigation. o Substantive Rights the clients make decisions regarding her substantive rights. ! Decision to Sue in Civil Cases the client decides whether or not to sue in a civil case. ! Settlement Offers a client has the ultimate decision in whether or not to accept any settlement agreement as part of the ends of representation discussed above. ! Pleas in Criminal Cases a client decides what plea to enter in a criminal case. ! Jury Trial Waiver in Criminal Cases a client decides whether or not to waive a jury trial in a criminal case. ! Testify in Criminal Cases a client decides whether or not she will testify in a criminal case. ! Decision to Appeal a client decides whether or not to appeal. Agreements to Limit Scope a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

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BarMax MPRE Study Guide

2. Duty to Communicate a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation AND shall: ! Promptly Inform of Decision Requiring Clients Informed Consent promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required by these Rules; ! Reasonably Consult About Means reasonably consult with the client about the means by which the client's objectives are to be accomplished; ! Keep Client Reasonably Informed About Status of Matter keep the client reasonably informed about the status of the matter; ! Promptly Comply with Reasonable Requests for Information AND ! Consult Client About Limitations on Lawyers 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 Rules of Professional Conduct or other law. 3. Client with Disability or Diminished Capacity an attorney has a duty, to the extent possible, to maintain a normal lawyer-client relationship with a client who is disabled or has diminished capacity (e.g. a minor). ! Appointment of Guardian an attorney may take reasonably necessary protective action, including the appointment of a guardian ad litem, conservator or guardian if the attorney reasonably believes the client cannot protect her own interests (i.e. lawyer reasonably believes that the client is at risk of substantial physical, financial or other harm unless action is taken). Confidential Information information relating to the representation of a client with diminished capacity is protected by attorney-client privilege. As such, unless authorized to do so, a lawyer may not reveal such information. When taking protective action, however, the lawyer is impliedly authorized to reveal information about the client, but only to the extent reasonably necessary to protect the clients interests.

C. Termination of the Client-Lawyer Relationship 1. Duty to Withdraw ! Court Permission Required in Litigation o Mandatory Withdrawal an attorney must ask for the courts permission to withdraw if the matter is already in litigation. o Permissive Withdrawal an attorney may ask for the courts permission to withdraw if the matter is already in litigation. Mandatory Withdrawal an attorney must withdraw from representation where: o Attorneys Mental or Physical Condition if the attorneys mental or physical condition makes continued effective representation unreasonable, the attorney must withdraw. o Violate Law or Ethical Duty lawyer must withdraw if continued representation would foster the commission of a crime or violate an ethical duty (note: if the attorney can continue to effectively represent the client without violating law or ethical rule, withdrawal is not mandatory even if the client asked the lawyer to break the law or violate an ethical duty). OR o Client Fires Attorney if the client fires the attorney, the attorney must withdraw. A client has an absolute right to fire her attorney at any time with or without

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BarMax MPRE Study Guide

! cause. The lawyer must withdraw if discharged but if the matter is in litigation, the attorney must still ask for the courts permission to withdraw. Permissive Withdrawal a lawyer may withdraw from representation for any reason if the withdrawal does not have a material adverse effect on the client or the client consents to the withdrawal. o No Material Adverse Effect a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect. o Good Cause? however, even if the withdrawal will adversely affect the client, the attorney may withdraw if there is good cause. ! Criminal or Fraudulent Conduct the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent. ! Prior Legal Services Used to Commit Crimes or Fraud the client has used the lawyers services to perpetrate a crime or fraud. ! Morally Repugnant or Imprudent the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. ! Failure to Pay Fees or Expenses the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. ! Attorneys Financial Burden the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. ! Client Will Not Cooperate the representation has been rendered unreasonably difficult by the client. ! Client Freely Assents to Attorneys Withdrawal if the client freely assents to the attorneys withdrawal, the attorney may withdraw. ! Other Good Cause Exists other good cause for withdrawal exists. o Procedure for Permissive Withdrawal if an attorney withdraws, she must provide timely notice to the client and must return all materials obtained during the representation. She also must not divulge any confidences since the duty of confidentiality persists indefinitely. ! Timely Notice the attorney must give the client timely notice of the attorneys withdrawal; ! Reasonable Opportunity to Find Another Lawyer the attorney must give her client reasonable opportunity to find another lawyer; AND ! Must Promptly Return Unspent Advances for Fees & Expenses the attorney must refund any advances for fees not yet earned or expenses not yet incurred. Material Papers the attorney must return any materials required for continuing representation with another lawyer. The attorney, however, may retain papers relating to the representation to the extent permitted by other law. Clients Property the attorney must return any other property that the client is entitled to. o Exception = Ordered by Court to Continue Representation a lawyer shall continue representation notwithstanding good cause for terminating the representation.

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BarMax MPRE Study Guide

D. Fees 1. General Rules the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. 2. Fees Must Be Reasonable a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. ! Factors Considered in Determining Reasonableness the factors to be considered in determining the reasonableness of a fee include the following: (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. 3. Contingent Fees a contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. ! Requirements o Must be in Writing o Signed By the Client AND o State the Method By Which the Fee Is to Be Determined ! Percentage to Lawyer ! Litigation & Other Expenses to be Deducted from Recovery ! Expenses Deducted Before or After Contingent Fee Calculation AND ! Expenses Client Will Be Liable for Regardless of the Outcome Prohibited In

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BarMax MPRE Study Guide

o Domestic Relations Cases any fee 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 thereof. AND o Criminal Cases a contingent fee for representing a defendant in a criminal case. 4. Fee Splitting with Other Attorneys a division of a fee between lawyers who are not in the same firm may be made only if: ! Division Proportional the division is in proportion to the services performed by each lawyer or some other proportion if each lawyer assumes joint responsibility for the representation; ! Client Agrees in Writing the client agrees to the arrangement, including the share each lawyer will receive, in writing; AND ! Total Fee = Reasonable the total fee is reasonable. 5. Non-compete Agreements Impermissible agreements that restrict the ability of an attorney to practice after the termination of employment are not permitted.

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