The Client Lawyer Relationship- Rules 1.2, 1.4, 1.5, 1.14, 1.16

An attorney represents a client in a family law matter. A hearing is set for Monday. On the Wednesday prior to the scheduled hearing, the client calls the attorney and advises that the client no longer wants the attorney to represent her; the attorney's representation is over as of the date and time of the call. The client advises that she intends to retain another attorney prior to the hearing. After receiving the call from the client, the attorney schedules another matter for Monday, does not appear at the hearing, and does nothing further on the case. Is the attorney subject to discipline?

) Yes, if representation has begun, the attorney must to withdraw from the case and take reasonable steps to mitigate consequences to client if discharged by client.

An attorney represented a municipality for several years, in accordance with a contract for legal services. The contract term ended, and the municipality published a new request for proposals, and in the end chose a different lawyer to provide legal services for the next several years. The municipality requested that the attorney (the one whose contract expired) provide the municipality's new counsel with all files - open and closed. The municipality has already paid the attorney in full for all his legal work. Which of the following would the attorney NOT have to provide to the municipality?

A general assessment of the municipality or the municipality's matter

An attorney had her own firm, and she employed a paralegal who had previously worked for another firm. The attorney agreed to represent two new clients: a plaintiff in a personal injury lawsuit, and a seller in commercial real estate transaction. The personal injury plaintiff had a case that was unlikely to succeed due to evidentiary problems, though it was legally valid and factually plausible. The attorney wanted to charge a fixed, non-contingent fee up front for this case, and the client reluctantly agreed. The seller of the commercial real estate, on the other hand, was in a hurry to complete the deal and wanted to liquidate the asset for more than its fair market value, which was possible but also unlikely to succeed. The attorney offered to handle the transaction on a contingency fee basis. If she could negotiate with prospective buyers and convince one to buy the property immediately for a price above the appraised value, she would receive thirty percent of the sale price as a fee, but if it sold at or below the market value, or took more than two months to sell, the attorney would receive only reimbursement for the transaction's costs and expenses. The paralegal told the attorney that these fee agreements were impermissible because personal injury plaintiff's normally paid contingent fees, and real estate transactions had to be on a fixed or hourly fee basis. The attorney disagreed, but she did not check the ethical rules herself to confirm this. Which of the following is correct?

It is proper to charge a plaintiff in a personal injury case a flat fee regardless of the case outcome, and it is permissible to charge the seller a contingent fee in a real estate transaction.

An attorney had her own firm, and she employed a paralegal who had previously worked for another firm. The attorney agreed to represent two new clients: a plaintiff in a personal injury lawsuit, and a seller in commercial real estate transaction. The personal injury plaintiff had a case that was unlikely to succeed due to evidentiary problems, though it was legally valid and factually plausible. The attorney wanted to charge a fixed, non-contingent fee up front for this case, and the client reluctantly agreed over the phone,though the fee agreement was not in writing.The seller of the commercial real estate, on the other hand, was in a hurry to complete the deal and wanted to liquidate the asset for more than its fair market value, which was possible but not likely to happen. The attorney offered to handle the transaction on a contingency fee basis - if she could negotiate with prospective buyers and convince one to buy the property immediately for a price above the appraised value, she would receive thirty percent of the sale price as a fee, but if it sold at or below the market value, or took more than two months to sell, the attorney would receive only reimbursement for the transaction's costs and expenses. The client agreed to this arrangement over the phone, after the attorney had carefully explained it, though the fee agreement was not in writing. The attorney was successful in both matters, and both clients were satisfied with the results of the attorney's representation. The paralegal told the attorney that these fee agreements were impermissible because personal injury plaintiff's normally paid contingent fees, and real estate transactions had to be on a fixed or hourly fee basis. The attorney disagreed, but she did not check the ethical rules herself to confirm this. Which of the following is correct?

It was impermissible for the attorney to represent the seller in a commercial real estate transaction on a contingent fee basis without a written fee agreement, signed by the client, stating the method of determining the fee.

An attorney injured his back and leg badly in a car accident. In the aftermath, the attorney became chemically dependent on prescription pain medications. This addiction progressed until it began to affect the attorney's relationships and work habits. The partners in his firm eventually insisted that the attorney seek professional help, so he enrolled in an outpatient rehab program and a twelve-step support group for painkiller addicts. The supervising psychiatrist in the outpatient program expressed concern about the attorney's complete dependence on the painkillers and his diminished ability to function physically or mentally. He advised the attorney to take a leave of absence from work, because he did not believe the attorney could competently fulfill his obligations to his clients. This same concern had prompted the attorney's partners to insist that he seek professional help. Just before enrolling in the outpatient program, a new client had approached the attorney about representing her in a tax dispute with the Internal Revenue Service. The attorney had handled such cases before, but it was not his specialty. The client is so desperate that he tells the attorney privately that he is considering shredding documents to hide some of his tax fraud from the IRS, which the attorney says he should not do, but worries that the client might do it anyway. May the attorney undertake the representation?

No because a physical or mental condition currently materially impairs the lawyer's ability to represent the client.

A client met with attorney to discuss certain financial decisions that the client was considering making in the future. The attorney discussed the pros and cons of making the decisions but do not give a recommendation to the client. The client went on to make the financial decisions and eventually came under investigation by the IRS for tax fraud. is the attorney subject to discipline?

No because an attorney may analyze and give an opinion about the potential consequences of a client's conduct

An attorney represents a defendant in a prosecution for rape. The client turned down several other experienced criminal defense lawyers who offered to take the case and hired the attorney to represent him. The client saw the victim early in the evening on the date when the rape occurred, but he has a solid alibi supported by multiple credible witnesses, that he was nowhere near the scene where the rape occurred at the time that it happened, and no DNA test linked the client to the right. The only evidence against the client in fact is the victim's memory seeing him early that evening and feeling uncomfortable around him, as if she could sense that he was a sexual predator. Her rapist wore a mask, so she could not identify his face but he was the same height and build as the client, so she is convinced he is the perpetrator. Despite the weakness of the evidence against him and his airtight alibi, the client is furious about the false accusation and Wants to teach the victim a lesson. He informs the attorney that he plans to take the stand and testify that the victim has a reputation among his friends for bringing promiscuous, that when he saw her that evening she was wearing provocative clothing and that he believes she was asking to be raped. The attorney finds this repugnant, but he believes that the client is truly innocent of rape in this case, and that the client is likely to receive an acquittal with or without his testimony attacking the victim's character and reputation. The attorney believes that the court will allow him to withdraw from the case and the client could easily hire one of the other lawyers to take over the representation. Is it improper for the attorney to withdraw from the representation, if he agrees with the objectives of the client is pursuing but agrees with his actions that the client plans to take?

No because even where the lawyer agrees with the overall objectives of the client, a lawyer may withdraw from the case if the client insists upon taking action that the lawyer considers repugnant

An attorney represented a defendant who was facing criminal charges for violating a newly enacted statute. The statute that made certain activities that had previously been minor misdemeanors into felonies. The district attorney handling the case spoke to the defendant's attorney, explaining that this was an important test case of a new statute, so the D.A.'s office was seeking the maximum penalty. The state did, however, offer a reduced sentence if the defendant would plead guilty, but this would still carry three years of jail time. Outraged, the attorney shouted that this had always been a misdemeanor charge in the past, which carried no jail time at all, and ended the conversation abruptly at that point. Without mentioning the conversation to the defendant, the attorney drafted an impassioned motion to dismiss the charges and filed it with the court. The attorney had a reasonable belief that his motion could be successful, though it was far from certain. The judge agreed with the attorney and granted the motion, dismissing all the charges against the attorney's client. Were the attorney's actions permissible under the Model Rules?

No, a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer

Boutique Firm charges its clients five dollars per page for photocopies done in-house on the firm's copiers. All new clients receive a schedule of fees before the representation begins that clearly specifies such charges, and client bills clearly itemize photocopying charges. The charge applies even if the client never sees the photocopies, as when associates conducting research must copy sections of cases, statutes, and regulations, or circulate draft memoranda to other lawyers working on the case. The charge also applies when the firm must produce documents for the other party in response to a discovery request. Boutique Firm set the amount at five-dollar per page, even though photocopies cost the firm only fifteen cents or so per page, because the surcharge generates a side revenue stream for the firm that enables it to charge lower legal fees, and to discourage clients from wasting paper. Boutique Firm is environmentally conscious. Is it permissible for Boutique Firm to assess clients a surcharge per page for photocopies done in-house?

No, a lawyer may charge the client no more than the actual cost of making a copy on the photocopy machine plus a reasonable allocation of overhead expenses directly associated with the provision of the service, such as the salary of a full-time photocopy machine operator.

a client retained an attorney to represent him in two cases, a criminal case in a divorce case. The attorney required that the client pay a retainer fee for the family law case, which billed at the attorneys hourly rate. The attorney then arranged for the client to pay him based on a contingency fee for the criminal case. The attorney and the client both signed the combined contract which detailed each fee arrangement for each case and the attorneys representation began are the attorneys actions proper?

No, as attorneys cannot charge a contingency fee for representing a defendant in a criminal case

Big Firm hired associates from the top of their class at the most prestigious law schools. Big Firm's partners often boasted to their clients, truthfully, that all their associates did federal judicial clerkships before joining Big Firm as lawyers. Conglomerate Corporation retained Big Firm regularly as outside legal counsel, partly in reliance on these representations from Big Firm's partners about the credentials and experience of their associates. On one occasion, an associate at Big Firm did several hours of legal research on a certain topic for one client, Conglomerate Corporation. The research later turned out to be relevant to another client's legal matter. Would it be permissible for Big Firm to bill the second client, who agreed to pay fees based on the time spent on the case, the same amount for the recycled work product that it charged Conglomerate, the first client, if Conglomerate consented?

No, attorneys who reuse old work product have not re-earned the hours previously billed and compensated when they first generated that work product.

a client fired an attorney after the attorney had completed 80% of the work involved in the representation. The client refuses to pay any of the fees that were in the original arrangement at the beginning of the representation. The client also demands that the attorney turnover all papers and documents relating to the representation. Must attorney immediately returned the client's documents regardless of the fees owed?

No, because a lawyer may retain papers resulting to the client to the extent permitted by law.

A certain attorney represents a client in a drug trafficking case. The client asks the attorney to deliver a package to a friend of the client. The client tells the attorney that the package contains illegal drugs, but he assures the attorney that he will not reveal who made the delivery if police discover that the transfer occurred. the attorney advises that he will not participate in the transfer. The attorney does not advise the court of the client's request and remains the client's attorney on the drug trafficking case. Are the attorney's actions improper?

No, because an attorney does not have to decline or withdraw from cases unless the client demands that the attorney engage in illegal conduct.

A litigation attorney represented a certain defendant in a lawsuit. The client was absent during the final pre-trial hearing about which experts the court would permit to testify at trial for each side. As the hearing was wrapping up, plaintiff's counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. The trial involved sensitive information about the mental health of some of the children involved as parties and witnesses in the case. The court agreed but asked if the defendant had any objections. The defendant's attorney tried to reach his client by phone, but he could not get through. There was no obvious reason to oppose the motion, so the attorney agreed on his client's behalf. The judge ordered the record sealed for the upcoming trial. The client never returned the attorney's phone call, and the attorney forgot to mention what had transpired until they were sitting in court on the first day of trial, two weeks later. The client was upset, having planned to use media publicity about the case to draw attention to the other side's exploitation of children as witnesses in litigation. The attorney told the client that the judge would not reverse the decision now that the trial was underway. Were the attorney's actions permissible, under the Model Rules?

No, because even when an immediate decision is necessary during trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must tell the client about it as soon as possible

An attorney receives a report from a psychologist that provides that the psychologist professional opinion that the client is unstable period the psychologist report indicates that the client believes himself to be perfectly sane and that the client has indicated he will cause harm if the psychologist submits a report stating that the client is not stable and sane. The attorney chooses not to provide the report to his client when he receives it is the attorney subject to discipline?

No, because immediately providing the report to the client may cause harm to the client

An attorney prepared a contract for a client in 2015. The matter has concluded, the representation has ended, and the person for whom the contract was prepared is not a client of the attorney or law firm in any other matter. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. On those facts, do the Model Rules require the lawyer to inform the former client of the error?

No, because the Model Rules do not require disclosure of material errors to former clients after the representation has ended.

A trial judge is going through a divorce, and he hired an attorney to represent him. The attorney's law firm partner is representing another client who is appearing before the same judge in his personal injury lawsuit. The judge and the litigation client both give written informed consent to the representation despite the potential conflicts of interest. Even so, the judge is trying to keep the divorce quiet until after the upcoming elections, because this occurs in a state with elected judges. The judge therefore refuses to disclose to the parties in the personal injury case that counsel for one side is from the same firm as the lawyer representing the judge in his pending divorce. Neither the attorney nor his partner can reveal to opposing counsel in the personal injury case that their firm represents the judge, due to their duty of confidentiality. The judge believes he will be unbiased in the personal injury case, even though he is the client of a partner of one of the lawyers in the case, so the judge does not need to disqualify himself from the case. The Code of Judicial Ethics does require, however, that the judge disclose the representation to the litigants appearing before him, which the judge has refused to do at this time. Can the attorney continue representing the judge in his divorce?

No, because the attorney must withdraw from the representation of the judge under these circumstances.

An attorney tells a client that certain features of the client's business proposal would constitute money laundering under current federal statutes. The discussion goes through the statute in detail, and the attorney explains why the course of action would meet the statutory definition of money laundering. In addition, the attorney discusses the various monitoring and reporting mechanisms that federal enforcement agencies have in place to detect money laundering, to convince the client that he would not escape arrest and prosecution if he proceeds. The client absorbs the information and uses it to structure a more elaborate money-laundering scheme. He exploits some ambiguity in the statute and the reporting requirements to make his enterprise much more difficult to detect, and this complicates enforcement and prosecution efforts against him. Overall, the attorney's advice turned out to be incredibly useful to the client in avoiding detection and expanding his criminal enterprise. Is the attorney a party to the client's course of action?

No, because the fact that a client uses advice in a course of action that is criminal or fraudulent of itself does not make a lawyer a party to the course of action.

An attorney represented a client who suffered from a partial mental impairment, though the client was legally competent and was able to participate in the decisions about the representation. The representation pertained to a litigation matter. The client's mental health issues were a private matter, and the opposing party was unaware of the situation. Due to the client's forgetfulness, it took the lawyer more time than usual to obtain information and documents from the client to comply with discovery and production requests. The attorney repeatedly missed deadlines for production during the discovery phase, and eventually the opposing party moved for sanctions. When the judge demanded an explanation from the attorney, the attorney panicked and blamed it on the client's deteriorating mental health, though the attorney had not discussed this potential disclosure with the client. Surprised, the judge offered to give the attorney and his client additional time to comply with discovery requests. The opposing party revisited their own trial strategy after this development. Was it proper for the attorney to make this disclosure when facing sanctions for missing discovery deadlines?

No, because the lawyer unnecessarily violated the client's confidentiality, and had plenty of time beforehand to obtain authorization from the client, or even to find a way to reduce the delays.

A client hired an attorney to represent him in suing his employer for wrongful termination. The attorney proposed a fee arrangement that made the fees contingent on the outcome, and he included in the fee agreement that the attorney would advance the costs of litigation. The attorney lost the case at trial, and the client then refused to pay back the costs that the attorney had advanced beforehand. Can the attorney force the client to repay the litigation costs that the attorney advanced to him?

No, because under the fee agreement, the client had to repay the attorney only if they won the case.

An attorney worked as an associate for several years at Big Firm, and while she worked there, she started a sexual relationship with one of the clients of the firm, whom the firm had already been representing before she began working there. Nevertheless, the attorney did not make partner at the firm due to this incident, even though it had not resulted in a disciplinary action, so she eventually left and started her own practice. She then made radio commercials to attract new clients to her firm, in which she boasted that she had been an associate at Big Firm, but that she did not make partner there merely because she had sex with a client a few times. This advertisement brought many new male clients to her firm. One day, the attorney was flying cross-country to attend a deposition on behalf of one client. This counted as travel time she would ordinarily bill to that client, as permitted by the ethical rules. During the flight, she decided not to watch the movie or read a book, but to work instead on drafting a motion for another client. Would it be permissible for her to charge both clients, each of whom agreed to hourly billing, for the time during which she was traveling on behalf of one and drafting a document on behalf of the other?

No, if the attorney flies for six hours for one client, while working for five hours on behalf of another, she has not earned eleven billable hours.

A client fired attorney after two weeks of representation, long before the matter was complete. The client had prepaid a large refundable retainer, against which the attorney was to draw his fees as the representation went on. The client therefore has fully paid her fees up to the point to the attorney. The attorney is upset about the client discharging him without cause and believes it is unfair and wrongful. The attorney refuses to return the remainder of the fees and refuses to turn over any documents from the representation to the client. Is it proper for the attorney to take this course of action, if indeed the client had no good reason to discharge him?

No, it is improper for an attorney to retain either the unused funds or the documents

An attorney consulted with a potential client, a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case, which appeared to be a complicated matter that would necessitate the testimony of experts at trial, and depositions of the experts and other witnesses beforehand. As the consultation concluded, the client and the attorney signed an engagement contract for the provision of legal representation, which stipulated that the attorney would a contingent fee based on a percentage (one-third) of the award in the case. The document that the client signed clearly explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also discussed all potential expenses for which the client could be liable, if the client prevailed in the case or not. To impress the client, the attorney called the defendant's counsel in the matter, at the end of the consultation, while the client was still sitting in his office. Over the phone, the attorney explained the plaintiff's injuries, the medical expenses the plaintiff had incurred, and the one-million-dollar recovery they would seek in the lawsuit they planned to file. The defendant's lawyer checked with the defendant, who was standing next to him at the time, and then immediately agreed to pay the full amount that the client was seeking to recover - a million dollars - without litigation. Would it be permissible for the attorney to charge the client one-third of the million dollars as a fee, given these facts?

No, it is not reasonable for the attorney to charge over three hundred thousand dollars in fees for making one phone call at the end of the first consultation with the client.

A certain employee at Big Bank faced criminal charges for alleged embezzlement of bank funds, so she retained an attorney to defend her against the charges for a flat fee of twenty thousand dollars, which the client could pay in monthly installments. The next day, a different Big Bank employee confessed to having taken the money, so the prosecutor dropped the charges against the first suspect, that is, the employee who had hired the attorney. The attorney had done nothing on the case except the original consultation with the bank employee as a prospective client, checking for conflicts of interest, and drafting an appearance for the court. The prosecutor was not aware that the original defendant had retained counsel; the withdrawal of the charges was due solely to another individual confessing to the crime. The attorney did not have to decline any other potential clients when he agreed to undertake the representation. After confirming with the client that the matter was over and further representation was unnecessary, the attorney sent the client a bill for the $15,000 flat fee. Was it proper for the attorney to do this?

No, it would be unreasonable for the attorney to charge twenty thousand dollars for doing so little.

An elderly client retained a local attorney to handle his estate planning matters. The attorney routinely practiced in this area and had a good reputation in the legal community. Unfortunately, the client had early-stage dementia and suffered from increasing forgetfulness and occasional confusion. The client always recognized the attorney as his lawyer, but he would sometimes forget her name and whether she practiced with other lawyers in the same firm. The client lived alone and took care of his own daily needs without incident, but he depended on relatives to for rides, as he could not drive, and friends or relative would check in on him every day. It was frustrating for the attorney to discuss any complex legal questions in the estate plan with the client, because he would frequently ask a question a few minutes after the attorney had given a thorough explanation about the same point. It was clear, however, that the client intended to divide the estate equally among the surviving heirs. Over time, the attorney included the client in fewer and fewer of the decisions, such as whether to set up a trust, or whether to sell off some of the real property in the estate rather than bequeathing the title to one or more heirs. These decisions were standard practices among estate planning lawyers and were objectively competent. Overall, the attorney fulfilled the client's objectives and protected the client's interests, even though she made many important decisions on her own without consulting the client. Was it proper for the attorney to use her own judgment on the practical questions of estate planning, without including the client in these decisions?

No, lawyers have an ethical duty to maintain, as much as possible, a normal client-lawyer relationship with the client, even when the client suffers from diminished capacity.

certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop's vehicle for occasional person errands. The police who arrived on the scene determined that Susan was not at fault in the accident. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The attorney has a reasonable belief that the cupcake shop will not become a party to the matter. Could the attorney be subject to discipline for making the referral and accept a referral fee without first obtaining written, informed consent of the cupcake shop, Diane, and Susan for a potential conflict of interest?

No, representation of one client is not directly adverse to another client, and there is not a significant risk that the referral of Susan will be materially limited by attorney's responsibility to the cupcake shop.

An attorney represented a client in a divorce case and charged the client an hourly fee for the representation. The client won primary custody of the child from the marriage, and the ex-spouse (the child's other parent) would take the child during school vacations. A year after the case ended, the client wanted to reopen the case to seek additional child support, because in the intervening months, the child had developed a disability that imposed high medical care costs on the client, and at the same time, the ex-spouse had won the Mega-Millions lottery, and was living a luxurious, profligate lifestyle. Would it be permissible for the attorney to represent the client in this matter on a contingent fee basis, given that the divorce was already final?

No, the attorney may not enter into an arrangement for, charge, or collect 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

An attorney worked as a purchaser for Conglomerate Corporation for many years before law school. After graduating and becoming a licensed practitioner, the attorney opened his own firm and represented many of Conglomerate Corporation's outside vendors in their contractual disputes with Conglomerate. In fact, the attorney advertised every month in local trade journals that he was a former purchaser for Conglomerate Corporation and could provide "affordable and experienced legal representation" to vendors who had legal disputes with corporations like Conglomerate. Regarding fees, the attorney would tell prospective clients that he sometimes billed hourly and sometimes charged a flat fee, depending on the complexity and time demands of each matter, and that this was difficult to predict beforehand. If this uncertainty was acceptable to the client, the attorney would agree to represent the individual. After the representation was complete, the attorney would decide how to bill the client. Is it proper for the attorney to handle fees in this manner?

No, the attorney must inform the client of the basis or rate of the fee and expenses before or within a reasonable time after commencing the representation.

An attorney grew up in poverty but worked hard to overcome obstacles and achieve success. Now a successful practitioner, the attorney is idealistic and passionate about helping the less fortunate. Every Saturday morning, he uses a small conference room at the local YMCA to assist pro se litigants in divorce and custody matters - the attorney helps them complete their own court forms (court filings) for a nominal fee, gives some advice about their individual situation, and reviews forms they have completed before the individuals themselves file them. The attorney is concerned about these pro se litigants misunderstanding his role and believing he is their lawyer, so the attorney requires each one to sign a printed disclaimer declaring that no attorney-client relationship exists. It reads, in relevant part, "I understand that this attorney has no legal or ethical obligation to provide legal representation to me in this matter." Given that the pro se litigant signed a form acknowledging that no legal representation will follow, is the attorney correct in believing that no lawyer-client relationship exists in these circumstances?

No, the lawyer is reviewing court documents and providing legal advice about pending legal proceedings, which constitutes the practice of law by the lawyer, even if the representation has a limited scope.

An attorney was a partner at Big Firm, which represented Conglomerate Corporation and Giant Company in corporate merger negotiations. Big Firm had state-of-the-art network firewalls, virus protection, password protection, and other data security features in place. Nevertheless, one Friday evening some hackers managed to breach Big Firm's networks and access client information and partner emails, for purposes of engaging in insider trading. The firm detected the breach within a few hours and notified state and federal law enforcement. The stock exchange had closed for the weekend, and law enforcement managed to apprehend the hackers over the weekend, before they had a chance to review the stolen information and share useful data or engage in illegal stock trades. The clients suffered no losses or adverse effects, but they could have. Big Firm is worried about how news of the breach would affect their reputation, and that it might invite other hackers to target their firm, so they would prefer to keep the incident a secret. The partners at Big Firm claim they have no duty to disclose to its clients that the breach occurred, given that no harm resulted. Are they correct?

No, when a data breach occurs involving, or having a substantial likelihood of involving, material client confidential information a lawyer has a duty to notify the client of the breach.

A certain defendant was facing charges for assault with a deadly weapon. A local criminal defense attorney offered to represent this defendant on a contingent fee basis. In other words, the attorney would charge no fee (the client would pay nothing) if the case resulted in a conviction, but he would pay only if the lawyer won an acquittal. Having no funds on hand to hire a lawyer by any other means, the client was eager to do this and consented to the arrangement, in writing. Which of the following best describes the lawyer's situation?

The attorney is subject to discipline for charging a contingent fee in a criminal matter.

An attorney had to abandon his home and his vehicle to take refuge in a FEMA rescue shelter following a natural disaster in his area. Some of the attorney's clients required immediate legal services that the attorney was unable to provide. What would be the attorney's ethical duty in this situation?

The attorney must withdraw from representing the clients mentioned.

n attorney filed a lawsuit on behalf of a client against Conglomerate Corporation as the defendant. The attorney's contingent fee contract stipulated that the attorney would receive thirty percent of recovery, if the case settled before trial, and a higher percentage if a trial was necessary. The client and the attorney signed an engagement contract for the provision of legal representation, which stipulated these terms. The document that the client signed clearly explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also discussed all potential expenses for which the client could be liable, if the client prevailed in the case or not. While the case was still in the discovery phase, Conglomerate Corporation offered the client a structured settlement. Under the settlement terms, Conglomerate would pay the client one million dollars up front, which would cover the plaintiff's medical costs, and the defendant would also purchase an annuity for the client. The annuity would cost Conglomerate $153,000, and it would guarantee the client monthly disbursements of $1000 until the client's death. The client is thirty years old. In terms of fees, how much should the attorney receive?

The attorney should receive $300,000 when Conglomerate's million-dollar lump sum payment arrives, and $300 of each subsequent disbursement from the annuity, when the disbursements occur, until the client's death.

a client hired an attorney to represent her in a litigation matter at the end of the first day of trial the client is unhappy with her lawyer's performance in the courtroom and informs the attorney that she is firing him and will find another lawyer. The attorney wants to continue representing the client until the end of the trial period may the client discharge the attorney after the trial has begun?

Yes a client has a right to discharge her lawyer at any time with or without cause, subject to liability for payments for the lawyer services

after an attorney has been representing a client in a transactional matter for six months the client asked the attorney to draft and deliver some documents that the attorney knows are fraudulent. The attorney tries to dissuade the client but the client insists. The attorney believes the recipient of the documents is likely to realize they are fraudulent before irreparable harm happens to the recipient. The client is willing to sign a private document for the attorney in which the client takes full responsibility for the fraud and states that the attorney was merely following orders and is not blameworthy in the matter. Would it be improper for the attorney to acquiesce in draft the documents according to the client's instructions?

Yes because a lawyer is required to avoid assisting the client for example, by drafting or delivering documents that the lawyer knows are fraudulent

a client who happened to be a judge, hired an attorney to represent her in her divorce proceeding against her husband, who was guilty of marital infidelity. Their fee agreement stipulates that the attorney would build a client every month for the work performed in the previous 30 days. After two months of representation the attorney has sent the client two bills, and has received no payments. Is it proper for the attorney to seek to withdraw from the case based on unpaid fees?

Yes because a lawyer may withdraw if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.

An attorney represented a client in litigation over a breach of contract. after jury selection but before the opening arguments of the trial the following Monday, the opposing party contacted the attorney was settled with the settlement offer the attorney an experienced litigator, was familiar with opposing counsel from previous cases and you that opposing counsel always follows up an initial settlement offer with a better offer a day or two later. Therefore the attorney declined the offer immediately knowing from experience that a better offer was forthcoming. When the attorney met with his client at the courthouse the following Monday for the first day of trial he mentioned that he was encouraged by the opposing parties of initial offer from the previous week which he had declined because it meant that more generous offer was on the way at any time period the client was surprised that his attorney had not consulted with him about the offer, but he had accepted the attorneys explanation for declining it and agreed that he would wait till the next offer. As both parties and their lawyers took their places in the courtroom the opposing counsel passed a note to the attorney with a new settlement offer and just as the attorney expected it was much more generous. The attorney and his client agreed to settle the case right then and avoided inconvenience of going through the whole is the attorney subject to discipline?

Yes because a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance prior to taking any action

an attorney agreed over the phone to represent a client and begin working on the case immediately. The client came into the office two weeks later to sign the representation agreement. At the same time the attorney gave the client a written statement of the hours worked so far and requested immediate payment for the portion of the fee, plus $10,000 retainer up front against which the lawyer would draw fees as the representation proceeded. The fee arrangement was complicated. In addition to the hourly fee for the time he had already worked, the agreement called for an hourly rate of $150 per hour for any work done before trial. If the case were to go to trial the hourly fee would be $250 per hour for the entire trial phase and any appeals. The agreement also stipulated that it incorporated by reference any oral agreements regarding additional fees and expenses. The client signed the agreement. Then the lawyer explained orally that in addition to the hourly fees and non refundable retainer, he would take a 25% contingent fee of any money that the other side had to pay to the client as a result of representation, whether in damages as they were claims and cross claims in the case, or in court ordered attorneys fees. The client agreed and they shook hands to confirm their oral agreement. Finally, the agreement authorized the lawyer to have full discretion to accept or reject any settlement offers without prior approval from the client although no such offers occurred. The case proceeded through the discovery phase and went to trial period on the last day of trial, before closing arguments it appeared that the client might win a large verdict. The client became resentful about the prospect of sharing this with the lawyer and fired the lawyer during a rescess before closing arguments. The client returned to the courtroom alone, waived his right to closing argument, and still won a significant verdict. The client now refuses to pay the lawyer the contingent fee or even the hourly fees for the last day of trial, because the client claims the attorney performed incompetently that day. The attorney has threatened to sue the client to obtain the fees. Could the attorney be subject to discipline?

Yes because all contingent fee agreements must be in writing not merely oral arguments incorporated by reference

An attorney has represented his client in the past on various transactional matters. They have always operated under an oral agreement about fees and they have never had a dispute over fees in the past, the attorneys would send the client a bill and the client would pay it. Recently the client contacted the attorney by phone about representing him as a plaintiff in a personal injury lawsuit. The attorney agreed, and then explained that he would charge a contingent fee in the case, so that the client did not have to worry about how much his attorney had to put into the case as the client would still receive the same share of whatever amount they want. Given their long history of working together the attorney offers to set their contingency fee below the rate charged by the other attorneys in the area, and they agree over the phone on a 25% contingency fee for the attorney, after costs and expenses. They never formalize this agreement in writing though at the end of the case, after they prevail and win a large verdict, the attorney sends the client a written statement about keeping 25% of the award for his fee. The client is very happy with the outcome of the case and they have no dispute over this fee. Would the attorney be subject to discipline in a situation like this?

Yes because contingent fees must always be in writing at the beginning of representation

An attorney represents a defendant in a criminal matter. The defendant faces felony charges. The attorney is very experienced in handling this type of case and knows from experience that defendants receive acquittals far more often in jury trials than in bench trials, at least with this type of case. The client, however does not want to incur the legal fees involved in jury selection, and cannot really afford it, so the client tells his attorney that he does not want a jury trial, but rather a bench trial period the attorney is convinced that his client is innocent of the crimes charge, and that a bench trial is likely to result in a wrongful conviction in this case, given some of the evidentiary issues. The attorney postpones notifying the court that the defendant will waive his right to a trial jury in hopes of changing the client's mind the court schedules jury selection and the attorney appears and participates in jury selection without telling his client, because he still hopes and believes that he will change his client's mind about the issue. On the first day of trial the client arrives in court and is shocked to see a jury seated. The defendant stands and objects loudly to the jury and explains that he wants to waive his right to a jury trial and have a bench trial instead. The judge refuses to dismiss the jury at this point, informing the defendant that his opportunity to request a bench trial has passed. The trial proceeds and the jury acquitted the client of all charges, as the attorney had expected, and to the apparent dismay of the judge, who would have ruled to convict if it were up to him. Is the attorney subject to discipline in the situation?

Yes because in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer as to whether to waive his right to a jury trial

client hired an attorney to handle a transaction matter. The client a billionaire wants to devote several $1,000,000 to philanthropy, there are several alternative ways to achieve the client's goals, incorporating A501C3 charitable corporation establishing a private foundation, creating a charitable trust, operating a nonprofit unincorporated association, or simply donating the money to an existing charity of some kind. Each alternative has different pros and cons regarding immediate tax benefits for the donor versus tax deductions for subsequent contributors permissible activities for the charitable entity, donor control versus independence, eligibility for government grants and administrative costs related to accounting and record keeping. The attorney does not discuss all of these details with the client though because the client said at the outset that he trusted his attorney's judgment and that the attorney believed that the client would find the details tiresome and confusing period the attorney set up a private foundation for the client because this could provide his client with the greatest immediate tax benefits with the highest degree of control in the long term period the downside was that the private foundation option involved burdensome paperwork and reporting to the IRS every year, imposed annual spend down requirements and limited the tax benefits for any other philanthropists who wanted to donate to the foundation later period the attorney believed the pros outweighed the cons in the case but the client was unhappy because he wanted to start something that would grow and attract other wealthy philanthropists who might get involved, and the administrative cost drained some of the funds that the client had hoped would go directly to charitable causes. Could the attorney be subject to discipline for how he handled the matter?

Yes because rules of professional conduct require a lawyer to consult with the client about the means to be used to accomplish the client's objectives.

an attorney agreed to represent a client as plaintiff in a patent infringement lawsuit. The attorney was part of a partnership that specialized in intellectual property law. The attorney prepared, and the client signed, a written fee agreement that specified that the attorney would receive a tiered contingent fee in the case, 25% if the case settled before trial 30% if it went to trial on one and 35% if the case went up on appeal and they prevailed in the appellate stage. In addition, the agreement specified that the contingent fee would come from total award before court costs and other expenses, and the client would be responsible for court costs and expenses out of his own pocket, either along the way as expenses arose during the proceedings or from the client share of the award after the attorney received his contingent fee. The attorney never revealed that his partnership agreement required him to share his part of the fees with three other partners in the firm, or that his fees would go towards the general firm operating budget from which the partnership paid the salaries of non lawyer staff, such as paralegals and secretaries. The attorney obtained a favorable settlement before trial period he telephoned the client with the good news and explained that he would deduct his 25% contingent fee as they had agreed and would send the client the remainder of the supplement funds. At that time there were no extending unpaid expenses or court costs. The client was glad to hear the news and the attorney promptly sent the client a check for 75% of the total amount received from the other party. The attorney and the client had no other contact except to exchange holiday greeting cards. Were the attorneys actions improper?

Yes because the attorney failed to provide the client with a written statement stating the outcome of the matter and showing the remittance to the client and the method of its determination

an attorney represents a client in a guardianship proceeding. The client is an adult with Down syndrome and has an IQ far below average in the mental retardation range and the diagnostic and statistical manual of mental disorders. The client's family is trying to have the client institutionalized and voluntary and the client is fighting this, wanting instead to live semi independently in a group home. With the help of a social worker, the client has hired an attorney to defend him against the legal proceedings to have his client institutionalized permanently. Having researched this type of case, the attorney knows that the case precedents give the client a small chance of prevailing in regular state court but a good chance of prevailing if the attorney can change the venue to family court or probate court. The attorney has not discussed with this client his decision to seek change of venue that would be more favorable to the client under the jurisdictions recent appellate decisions. Switching venue however will mean traveling much farther to the proceedingS. is it proper for the attorney to leave the client out of this decision entirely?

Yes fully informing the client according to the usual ethical standards may be impracticable, because the client suffers from diminished capacity

an insurer retained an attorney to represent it in a matter and requested a retainer agreement that limited the representation to matters related to the insurance coverage. The insurance was a homeowners policy for damage to the policyholders residential real estate, and it included a rider for premises liability. The incident that triggered the claim however involved the brutal murder of a woman and her two young children across the street from the house in a neighbor's driveway. Due to the limited scope of his representation however the attorney ignored the horrific deaths in the the fact that the known killer had escaped conviction on a technicality. In a cool and calculated manner the attorney focused his work exclusively on the property damage from the incident and the premise liability and obtained favorable outcome for the insurer. Was it proper for the attorney to limit the scope of his representation in this way?

Yes when an insurer retains a lawyer to represent an insured the representation may be limited to matters related to the insurance coverage, a limited representation may be appropriate because the client has limited objectives for the representation

An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the next day agreed to represent a defendant in litigation where the defendant faces vicarious liability. Only after the attorney has conducted some investigation of the case, and has obtained confidential information from each client, does the attorney discover that the plaintiff client is actually suing another of the attorneys clients under a theory of vicarious liability. The two clients are at actually adverse parties in the same litigation. Must the attorney withdraw from representing both clients?

Yes, a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct

An attorney prepared a contract for a client in 2013. The matter concluded, and the representation regarding that matter has ended, though the attorney continues to represent the same client on some unrelated matters. In 2017, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. On those facts, do the Model Rules require the lawyer to inform the client of the error?

Yes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, and the attorney's ongoing representation on other matters means a client-lawyer relationship still exists.

An attorney prepared a contract for a client in 2016. The matter is nearing conclusion, so the representation regarding that matter has not ended. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. The error does not, however, furnish a colorable claim for malpractice, because the client has not yet suffered any injury, and it is not clear that the attorney's error falls far enough below the industry standards to meet the legal standards for negligence. On those facts, do the Model Rules require the lawyer to inform the client of the error?

Yes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, even though the error does not furnish the basis for a valid malpractice claim.

An attorney prepared a contract for a client in 2016. The matter is nearing competition, so the representation regarding that matter has not ended. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. The error does not, however, furnish a colorable claim for malpractice, because the client did not suffer any injury, and the client in the meantime canceled the agreement with the other party due to other factors. Even so, any reasonable client who learned of this mistake would lose confidence intheir lawyer's competence or diligence. On those facts, do the Model Rules require the lawyer to inform the client of the error?

Yes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, whenever the error would predictably cause a client to consider terminating the representation even in the absence of harm or prejudice.

Client is an inexperienced drug dealer and consults with his attorney about the legal ramifications of his business. Without explicitly endorsing or encouraging the client in his criminal enterprise, the attorney conducts research at the client's request about various drug laws and sentencing guidelines. The attorney writes a detailed memorandum of law explaining that certain threshold quantities of drugs, according to the relevant statutes, create a presumption of "intent to distribute" or trigger a significant sentencing enhancement. Similarly, the attorney explains that statutes and sentencing guidelines impose higher-grade charges and severe sentencing enhancements if a drug dealer brings a firearm to a transaction. The client mulls over the information and decides to change his business model from bulk sales of narcotics to selling smaller quantities in more individual transactions, such that each sale constitutes only the lowest-level misdemeanor. The client also instructs all his subordinates to avoid carrying firearms and instead to refill pepper spray devices with hydrochloric acid, which they spray in the face of their opponents in any altercation, causing severe disfigurement. Is it proper for the attorney to provide such legal advice to the client?

Yes, because 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.

An attorney provides itemized billing to her clients: hours worked by partners and associates, expert fees, international phone call charges, court costs, stenographers used in depositions, and so forth. She also includes some itemized prorated charges for overhead costs. Her mobile phone, which she uses exclusively for work, has a plan with a fixed monthly charge and unlimited minutes and data, so she divides her monthly phone bill into hourly increments for each day of the month, and for each hour of time she works on a client's matter, she bills the client for an hourly increment of her phone bill, even if she did not use the phone during that hour. She reasons that she was paying to have a phone available during that time in case clients needed to reach her, so the clients can share the costs. She takes a similar approach with other fixed overhead costs, like the salaries of her support staff - each client bill has a ten-dollar charge for "general staffing costs." A nominal charge on each bill is for the administrative costs of billing clients. Could the attorney be subject to discipline for charging clients a share of her overhead costs and operating expenses?

Yes, because a lawyer may not charge a client for overhead expenses normally associated with properly maintaining, staffing, and equipping an office.

A client hired a certain attorney to represent her in a personal injury lawsuit in which the client is the plaintiff. After an initial consultation and two meetings to review the main evidence in case and to discuss the nature of the claims, the attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Nevertheless, the attorney did not allow the client to review the pleadings before filing them, and afterward, the client expresses disappointment that she did not have the opportunity to review the pleadings beforehand and make suggested edits, given that it is her case and that the attorney is working for her. Was it proper for the attorney to draft the pleadings based on conversations with the plaintiff and file the documents without first having the plaintiff review them?

Yes, because a lawyer may take whatever actions the client has impliedly authorized as part of the representation.

A client explains to his attorney that he is operating an illegal website where users can anonymously upload and download pirated music and videos, in violation of copyright laws and other anti-piracy statutes. The website is very lucrative for its operator, and the client has become a multimillionaire by founding and operating the site. The client is concerned about potential criminal charges or civil lawsuits over the website. His attorney explains to the client how he could use a series of dummy limited liability corporations, mail forwarding addresses, and offshore bank accounts to avoid detection. Each of the steps of the process the attorney describes is technically legal - creating the corporate entities, purchasing mail-forwarding services, and opening bank accounts in Belize.The attorney decides not to charge the client for this advice session but bills the client for other transactional work performed. Is the attorney subject to discipline?

Yes, because a lawyer must avoid assisting a client in fraudulent or criminal activity, which includes suggesting how to conceal the wrongdoing.

an attorney is a litigator and represents a client in a civil lawsuit in which the client is the defendant period the attorney explains the general strategy and prospects of success and consults the client on tactics that are likely to result in significant expense, such as hiring of experts and jury consultants. At the same time the attorney believes their best shot at winning the case will be to elicit an admission from the plaintiff during cross examination when the plaintiff testifies at trial period more specifically the attorney plans to elicit a mild innocuous admission during the first round of cross examination expecting opposing counsel to rehabilitate the witness on redirect examination. His plan then calls for a short direct recross consisting of three yes or no questions that should elicit a devastating admission from the plaintiff, which opposing counsel is probably not anticipating. There has been no discussion with the client however about this plan for cross and recross. Even if the recross does not go as well as the attorney hopes they might prevail in the case by several other ways. Is it proper for the attorney to leave the client out of the planning for the cross examination and recross of the plaintiff?

Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail

A certain attorney represents a defendant in a murder case. At trial, the jury convicted the client and sentenced him to death, and the appellate courts upheld the conviction as well as the sentence. The attorney has now offered to file a habeas corpus petition in federal court to appeal the case to the United States Supreme Court, if necessary. The defendant, however, has developed terminal cancer, and does not expect to live another six months. The defendant tells the attorney to drop the appeals because even if they won, the defendant would not live long enough to enjoy his freedom. Even so, the defendant does not terminate the representation, because he wants the attorney to handle his estate planning matters while he is on death row, and he has some administrative complaints in progress against the prison where he is living. The attorney strongly opposes the death penalty and believes his client is innocent, so he files the habeas petition anyway. While the habeas petition is making its way through the federal appellate process, the defendant succumbs to his illness and dies in prison. Is the attorney subject to discipline for filing the habeas petition, despite the client's reservations?

Yes, because a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to how to pursue these ends.

An attorney represents criminal defendants. One day, a client appeared in the attorney's office and explained that he had been blackmailing his former employer for the last year. The client had hired a prostitute to seduce the former employer in a room with hidden cameras, then showed the embarrassing photographs to his former employer and demanded monthly payments of $500, which the employer paid, not wanting to destroy his marriage. The prostitute subsequently died of a drug overdose. The client's former employer eventually tired of making the monthly blackmail payments and went to the police about the matter. The client is now worried that he will face charges for blackmail, which would violate his parole and result in a lengthy incarceration. The client retained the only copies of the photographs, as he merely showed them to the former employer a year ago to extort the payments. After the client explained all this to his attorney, he gave the attorney the documents and instructed the attorney to destroy them or hide them so that the police could not find them. Attorney put the photos in a folder marked ATTORNEY WORK PRODUCT - PRIVILEGED AND CONFIDENTIAL, and sent the folder to a secret overseas document storage service in the Caymans. The police obtained an arrest warrant for the client based on the former employer's affidavit, and at trial, the prosecutor obtained a conviction based on the employer'stestimony and the bank records showing the monthly transfers. Is the attorney subject to discipline?

Yes, because a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent, such as destroying evidence when there is a pending criminal investigation.

Client is the leader of a radical religious group that protests at the funerals of soldiers who died tragic combat deaths overseas. The protests are not against the war, however, but against society's increasing tolerance of homosexuality and gay marriage. The client and his followers stand outside the funerals as grieving family members arrive, and they hold large picket signs emblazoned with hateful sayings against homosexuals, some of which use shocking language. They also hold signs indicating they are happy that American soldiers die frequently, because they believe these deaths validate their point that the country is on the wrong course morally and has become evil by being more tolerant. The group heckles those attending the funerals, but then disperses once the funeral ceremony starts. The group receives regular national media coverage because of the intentionally sensational and shocking nature of their protests. The client now faces a tort lawsuit by the father of a deceased soldier whose funeral the group picketed; the plaintiff claims intentional and negligent infliction of emotional distress. The client is certain that his First Amendment rights trump such subjective-harm tort claims and has a recent Supreme Court case supporting his position. The client asks an attorney to represent him in the matter. The attorney reluctantly agrees to take the case and the trial court gives an unfavorable verdict against the client. After the case, reporters interview the attorney asking how he could represent such a client and the attorney states during the interviews that he did not necessarily endorse the client's religious, social, moral, or political views, but was merely providing representation. Are the attorney's actions proper in this case?

Yes, because a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities.

A certain attorney represents a client in a litigation matter. The client was not present during the last pre-trial hearing at which the lawyers argued about whether certain experts on each side could testify at trial. The trial was to start the following week. At the end of the hearing, the opposing counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom.He explained that the testimony at trial would necessarily reveal some of his client's trade secrets, and it was important to the client to keep the trial records sealed. The judge was amenable to this suggestion and asked the attorney if he had any objections. The attorney tried to call the client, but the client did not answer his phone right then. Unfortunately, the attorney could not think of a compelling reason for the client to oppose the motion, so he agreed, and the judge set the matter for a sealed-record trial. Three hours later, the client returned the attorney's call, and the attorney explained what had transpired. The client felt dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but the attorney explained that it would now be difficult to get the judge to reverse course on this point. Was it proper for the attorney to agree to the request without obtaining the client's prior consent?

Yes, because during a trial, when an immediate decision becomes necessary, the exigency of the situation may require the lawyer to act without prior consultation, assuming the lawyer promptly informs the client of actions the lawyer has taken on the client's behalf.

A client hired an attorney to research the legality of a musical "mash-up," a sound recording that includes brief sound clips and samples from many other artists' commercial recordings. The client's unique approach puts it in the gray area around "fair use" and "composite works of art" under prevailing copyright law, and no court has yet ruled on the precise issue, though the question has been the subject of seventeen lengthy law review articles in the last two years, reaching a range of different conclusions. No litigation is pending, and the client has not yet undertaken any activity that could constitute a copyright infringement; he is seeking reassurance before proceeding that he would not face liability for copyright infringement. Because the client primarily wants a memorandum of law answering his hypothetical legal question, he asks the attorney to limit his research and writing to two hours of billable time. The attorney agrees, spends an hour reading and an hour writing, and gives the client a short memorandum. Given that the client's objective was merely to secure general information about the law the client needs, was it improper for the attorney to agree to this limitation on the scope of representation up front?

Yes, because given the complexity of the subject and the uncertainty about this certain point of law, two hours was not a reasonable amount of time to yield advice upon which the client could rely

A new federal Treasury Regulation provides that attorneys who prevail in tax cases on behalf of their clients against the Revenue Service may receive attorneys' fees at the fixed rate of $100 per hour, not to exceed $100,000. A certain attorney lives in a state that allows "reasonable" fees, and he makes a written fee agreement with the client for an additional $100 fee per hour, on top of whatever fees the Treasury Regulations allow in their case. If the client provides written informed consent, could the attorney be subject to discipline for this fee agreement?

Yes, because state rules about legal fees are subject to limitations by applicable law, such as government regulations regarding fees in certain tax matters.

An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case. The attorney put all the terms of the fee agreement in written form in a letter to the client. The letter explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also explained all potential expenses for which the client could be liable, if the client prevailed in the case or not. The client received the letter, read it carefully, and called the attorney to give verbal assent and confirmation to all the terms. The client's spouse later discarded the letter, and the attorney proceeded with the representation. Could the attorney be subject to discipline, based on these facts?

Yes, because the client did not sign the fee agreement.

an attorney represented a client in litigation over a breach of contract. After a long period of discovery as the trial date approaches the two parties make a new attempt at settlement negotiations, with each party's lawyer acting as a representative. The client is the plaintiff in the case and has told the attorney on several occasions that she is not considering any settlement offer less than $100,000. The client is a sophisticated business owner who has weathered litigation many times in the past, including litigation over a breach of a near identical contract term period based on her experience the client has made an informed estimate that her chances of winning a $250,000 verdict at trial are almost exactly 50%, and that trial expenses are likely to be around $50,000 whether she wins or loses and from there she derived her reserve amount of $100,000. The attorney met with the client the evening before the attorney would meet with opposing counsel for negotiations, and the client reiterated her reserve amount to the attorney adding, do not even call me if the opposing party offers less than $100,000 I will not accept it and I want you to simply decline lowball offers. The next day the client leaves on a business trip and the attorney heads to the settlement negotiation meeting where opposing counsel offers $90,000 to settle plus a written apology from the defendant to the client for breaching their contract. Made the attorney reject this offer without first consulting with the client?

Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer

A certain defendant was indigent and received court-appointed defense counsel in his felony larceny case. The defendant insisted that he was completely innocent and that he would not accept any plea bargains, because he wanted an opportunity to prove his innocence at trial. When the defendant told the attorney his expectations, the attorney explained that there is a special type of plea called an "Alford Plea," in which a defendant may agree to accept a conviction while still contesting his guilt or maintaining his innocence. The defendant refused, and told the attorney, "Do not even contact me with offers from the prosecutor for a guilty plea. I will not plead guilty. I will prove my innocence in a court of law!" The prosecutorindeed made several plea offers, and each time the attorney presented the offer to the defendant, who rejected it and reminded the attorney that he did not want to hear about any offers to "make a deal." The defendant's hard line proved effective as a negotiating strategy, and eventually the prosecutor called the attorney to say they would reduce the charges to a misdemeanor and the sentence to "time served" if the defendant would plead guilty. The attorney thought this was a ridiculously generous offer but simply rejected it without consulting his client. The client proceeded to trial and the jury convicted him, and he received the maximum sentence for the crimes charged. Was it proper for the attorney to reject the final plea bargain offer without informing the client?

Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer.

A certain client calls an attorney to ask if it is possible to apply for an extension on filing his annual tax returns, if the deadline for filing returns is still two weeks in the future. This attorney offers to research the matter for a few hours and write a formal legal memorandum for the client about filing extensions. Even so, offhand, the attorney can assure the client over the phone that it is indeed possible to apply for an extension and that the IRS routinely grants them if an application for extension arrives before the regular deadline. The attorney practices tax law and is familiar with the rules. The client thanks the attorney and says that he is satisfied with the "short answer," and that he does not want the attorney to do any more research or writing about it, but to send a bill for the phone call. Then the attorney agrees and bills the client for the telephone conversation and conducts no further research on the matter. Is it proper for the attorney to limit his representation to a single telephone call like this?

Yes, because the client's objective is no more than securing general information about the law the client needs to handle a common and typically uncomplicated legal problem, so the lawyer and the client may agree that the lawyer's services will be no more than a brief telephone consultation.

An attorney has already represented a certain client on several matters. Most recently, the attorney has represented the client in a litigation matter against the city's largest manufacturer. The manufacturer, whom the attorney is suing on behalf of the client, is both the city's largest employer and the largest purchaser of goods and services from small businesses in the area. As the discovery phase winds to a close and the court sets a trial date, the attorney learns that the client misused the attorney's services in the past to perpetrate fraud by having the attorney submit falsified documents to government entities and to insurance companies. The attorney is furious and yells at the client, using profanity. the attorney then petitions the court to let him withdraw from the representation, stating the reasons in general terms that do not betray specific client confidences. The client strongly objects to the attorney withdrawing from the representation, because the trial is only two months away, and all the other litigation firms in the city have conflicts of interest that prevent them from taking a case against the large manufacturer. It is indisputable that the withdrawal is materially prejudicial to the client, who may have to proceed into the trial pro se or must find a new lawyer from out of town. The court is willing to postpone the trial by three weeks to give the client time to find a new lawyer or prepare to represent himself. Is it proper for the attorney to withdraw from representation in this case, if the court has no objection?

Yes, because withdrawal is permissible if the client misused the attorney's services in the past, even if the withdrawal would materially prejudice the client.

An elderly retiree was reading the newspaper one morning, and he noticed an advertisement by a local attorney offering to write simple wills for $500. The attorney's name was unfamiliar, but the retiree called the phone number in the ad and asked the attorney to write a simple will for him, and the attorney agreed. Neither party, however, mentioned the advertisement or discussed the attorney's fees. The lawyer drafted the will, met with the client for signing, and then sent a bill for $1500. Under these circumstances, is the client entitled to pay only $500?

Yes, given that the attorney advertised for that amount and the client had seen the ad, the parties have an implicit contract under which the attorney must write the will in exchange for $500.

A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop's vehicle for occasional person errands. There is a dispute among the parties involved in the accident about who was at fault. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The other driver has already filed a claim against Susan and the cupcake shop, and the attorney can see that Susan's interests in the suit are adverse to the cupcake shop's interests. Even though the attorney does not plan to represent the cupcake shop in the lawsuit, the cupcake shop will continue to be the attorney's client for business and transactional matters. Can the attorney make the referral and accept a referral fee, under these circumstances?

Yes, if the attorney obtains the informed consent, confirmed in writing, of both the cupcake shop and Susan as potential co- defendants, and otherwise meets the requirements of Model Rule 1.7(b).

A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop's vehicle for occasional person errands. There is a dispute among the parties involved in the accident about who was at fault. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The attorney expects the other driver in the accident to file a claim against Susan, and eventually against the cupcake shop as well, as the owner of the vehicle. In that case, the attorney's duty of loyalty to Susan and the cupcake shop could be in tension, and the attorney could have a material limitation in the representation. Can the attorney make the referral and accept a referral fee, under these circumstances?

Yes, if the attorney obtains the informed consent, confirmed in writing, of both the cupcake shop and Susan as potential co- defendants, and otherwise meets the requirements of Model Rule 1.7(b).

Big Firm bills most of its clients on an hourly-billing basis, measured in fifteen-minute increments. Most of the firm's clients are large corporations. Big Firm's associates have burdensome billable hour requirements, so they spend as many hours as possible on every case, working every angle possible, taking an exhaustive approach to research memoranda, depositions of potential witnesses, and daily written updates to the corporate clients about their matters. The managing partners at Big Firm assign a dozen or more associates to every matter, no matter how small, even if that means some associates are merely double-checking or proofreading the work of other associates. The corporate clients and their insurers pay for these services, and whenever the clients prevail in litigation, they seek attorney's fees from the losing party. Could Big Firm (or its managing partners) be subject to discipline for charging unreasonable fees?

Yes, lawyers should not exploit fee arrangements based primarily on hourly charges by using wasteful procedures.

Big Firm raises its hourly billing rate for all clients annually, on the first day of the year, by two percent. The initial engagement documents at the outset of representation explain this practice clearly, but Big Firm does not inform clients in writing each time the annual rate increase occurs. Is it proper for Big Firm to handle its billing and rate increases in this manner?

Yes, periodic, incremental increases in a lawyer's regular hourly billing rates are permissible if a client understands and accepts such practice at the commencement of the client-lawyer relationship, and the periodic increases are reasonable under the circumstances.

A client hired an attorney to represent her in business litigation, as the plaintiff, for a set hourly rate for the fees. By agreement, the fees were not due until the conclusion of the matter and the end of the representation. During the pleading phase of the lawsuit, however, the other party unexpectedly impleaded a third party, which made the case far more complicated and time-consuming for the attorney. The attorney explained the problem to the client, and the two agreed to shift to a contingent-fee arrangement. The attorney carefully explained the tradeoffs involved in the different fee arrangements, and offered to continue, on an hourly basis, but both the client and attorney thought that contingent fees were now more appropriate. The attorney fully complied with the written notice requirements of Rule 1.8(a) for changing fees mid-representation. The following day, in another unexpected development, the opposing party offered to settle for a generous sum, more than the parties thought the case was worth, and the client immediately accepted. Must the client now pay the contingent fee to the attorney, even though the client would have paid significantly less under the original hourly fee agreement?

Yes, the fee change was reasonable under these circumstances, and the attorney followed the notice requirements of the Model Rules.

Husband hired a certain attorney to represent him in a divorce; the husband and wife had three adult children. Husband was quite upset when he met with the attorney, because his wife had filed for divorce and he felt deeply betrayed. The couple had a prenuptial agreement that clearly delineated the division of assets in case of divorce, and child custody is not an issue as the children are in their twenties. As part of his routine consultation questions, the attorney asked if there had been any marital infidelity on the part of either the husband or wife. Husband admitted to the attorney that he once had an affair many years ago, that the wife never discovered, and that he wanted to keep secret, if possible. He then speculated that he had no idea if his wife had ever had an affair, then became very emotional as he considered the possibility. Within minutes, he had convinced himself that his wife had been having affairs with other men for years, though he never knew it, and that the three children were unlikely to be his offspring. The attorney had already looked at Husband's photograph of his children, and their resemblance to their father (Husband) was remarkable. the attorney finds repugnant the idea of subjecting the adult children to paternity tests, which would traumatize them unnecessarily, regardless of the result. The attorney also believes that accusing the wife of infidelity would be imprudent, as it will ensure hat the family would discover Husband's previous affair, which otherwise might not happen. Without the accusations of infidelity, all the issues of the divorce would come under the prenuptial agreement and not be in dispute. Then the attorney insists on limiting his representation to the divorce and wants to include in the retainer agreement that there will be no accusations of infidelity or paternity testing of the children, unless the other side initiates in this regard. After Husband calms down, he agrees to the attorney's conditions of representation. Is it proper for the attorney to insist on such conditions of representation?

Yes, the terms of the representation agreement may exclude specific means that might otherwise serve used to accomplish the client's objectives, such as actions that the lawyer regards as repugnant or imprudent.

An attorney represented a wealthy elderly widow whose mental condition was deteriorating. The client was beginning to have traumatic hallucinations and violent outbursts. During one of her lucid moments, she encouraged her attorney to take steps to ensure that her granddaughter, who lived next door and was her primary caregiver, would have legal guardianship over her and would be able to manage her affairs. The granddaughter, who was married and had two children, spoke with the attorney, and urged him to pursue such measures. At the same time, the granddaughter had borrowed a large sum fifteen years earlier to purchase the home adjacent to the widow's, so that she could live close enough to provide daily care for her, and this loan was coming due with a large balloon payment at the end that the granddaughter could not afford. The client would not agree to extend the loan, because she did not expect to live much longer, and no longer understood the problem with the upcoming balloon payment. She also began to miss payments on some of her bills because of her mental confusion. After an episode of violent hallucinations that necessitated the hospitalization and involuntary medication of the client, the attorney decided to proceed, obtained a psychiatric evaluation of the client, and petitioned in court for the granddaughter's appointment as legal guardian of the client. The attorney believed in good faith that such stepswere necessary to protect the client's financial interests and physical well-being. When the client learned that the attorney had filed for a guardianship, she objected to it, and accused the granddaughter of trying to avoid repayment of her loan. Were the attorney's actions proper, given these facts?

Yes, when a lawyer has reason to believe that the client has diminished capacity, is at risk of substantial physical or financial harm unless action is taken, the lawyer may take necessary protective action, including seeking the appointment of a guardian or conservator.

A certain attorney represents a client in a transactional matter, a complex business merger. The parties have agreed in advance, by contract, to engage in good-faith negotiations, but that if an agreement does not emerge within six months, either party can abandon the deal and cease negotiations. Three months into the negotiations, the parties are close to a final agreement. The attorney has been conducting the negotiations without the client present, checking in with the client from time to time. One day, the other party presents a detailed proposal that would resolve all remaining issues. This proposal would give each side most of what it wants, but also requires a few concessions from each party. The attorney calls the client immediately and gives a brief overview of the new proposal, hitting most of the highlights and carefully explaining the bottom-line concerning the final buyout price to complete the merger. The client gives the attorney consent to consummate the agreement. Could the attorney be subject to discipline for how he handled the final agreement?

Yes, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement, and the facts suggest that the attorney did not necessarily explain all the concessions that the client would have to make.

a court orders that certain clients should receive child support from her ex-husband. The client's ex-husband stopped making child support payments 12 months ago. The client hires an attorney to handle the enforcement of child support against the client's ex-husband. The attorney agrees to take on the case on a contingency basis because the client cannot afford to hire an attorney since she has not been receiving child support from her ex-husband. The client also asked the attorney to pay her court costs as she cannot afford those either. The attorney prepares a contract that states that the attorney will only be paid for his representation if the client prevails on the enforcement motion, but the court costs be reimbursed by the client within 30 days of the finalization of the case regardless of whether the client prevails. Is the attorney's conduct proper

yes because attorneys may accept cases on a contingency basis in domestic relations issues if the case is merely to enforce a prior order and attorneys may pay for court costs for clients

an attorney has represented a client on various small matters in the past period the client now needs representation for a more substantial matter involving a business transaction. During a phone call the attorney agrees to represent the client at a slightly higher hourly rate given the complexity of the matter and when they meet to discuss the transaction in more detail the attorney double checks with the client about the fee arrangement verbally, explaining it carefully and answering any questions that client may have period the attorney and the client never formalized the fee arrangement in writing but the attorney does send printed bills to the client periodically eventually the client starts to feel that the representation is costing too much and objects to one of the bills. Was it permissible for the attorney to have an oral agreement over hourly fees without putting the fee agreement into writing

yes because even though it is always preferable to have fee arrangements in writing, it is not required by this type of case. ( inwriting for contingency cases and fees shared between lawyers at different firms that worked on the case.

An attorney represented a client in a criminal matter. The client had a history of mental illness, and the court ordered a psychological examination to determine if the client would be competent to stand trial. The case did not involve an insanity defense or a defense of diminished capacity. The psychologist who evaluated the client spoke privately to the attorney and explained that the client was indeed competent to stand trial, but that in his opinion, the client also suffered from delusional narcissism, paranoia, and oppositional-defiant syndrome. The psychologist pleaded with the attorney not to tell the client about this diagnosis, because the disclosure could harm the client, triggering an episode of paranoia in which the client would suspect that everyone around him was conspiring to institutionalize him, and he would become uncooperative at trial and mistrustful of his own lawyer. Then the attorney told the client that the psychologist had deemed him competent to stand trial and did not disclose the rest of the psychologist's assessment. Was it proper for the attorney to conceal the psychologist's diagnosis from the client?

yes, a lawyer may delay transmission of information when the client would be likely to react imprudently to an immediate communication, including a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client.

An attorney agrees to represent a client in a divorce proceeding against her husband. The client is particularly concerned about obtaining her fair share of the marital property or assets, as much as possible, in fact as well as a suitable level of child support for their children. The client agrees to pay the attorney his usual flat fee for divorce cases, $5000 but also offers to pay him 10% of whatever he wins in terms of payments and distribution of assets, on top of his usual fee. After a protracted acrimonious divorce proceeding, the attorney obtains a settlement worth approximately $2 million for the client. Is the attorney subject to discipline in this scenario

yes, because the attorney entered into an agreement for a fee and a domestic relations matter, the amount of which was contingent upon the amount of alimony support or a property settlement.