PRO RES - The Client-Lawyer Relationship

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 -ABA Formal Op. 15-471

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. -Rule 1.5(c)

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. -Rule 1.5(c)

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. -Rule 1.4

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. -Rule 1.5 Cmt. 1; ABA Formal Op. 93-379

Boutique Firm charges its clients fifteen cents 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 fifteen cents per page because that approximates the firm's own costs in leasing the high-tech photocopiers, purchasing paper and toner cartridges, and paying for frequent maintenance and repairs of the machines by technicians. Could Boutique Firm be subject to discipline for charging clients per page for photocopies done in-house?

-No, a lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer. -Rule 1.5 Cmt. 1; ABA Formal Op. 93-379

Contingent fees in criminal cases. A client retained an attorney to represent him in two cases: a criminal case and a divorce case. The attorney required that the client pay a retainer fee for the family law case, which billed at the attorney's 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 attorney's representation began. Are the attorney's actions proper?

-No, as attorneys cannot charge a contingent fee for representing a defendant in a criminal case -Rule 1.5(d)(2) states that Attorney shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case -Rule 1.5(d)(2) states that a lawyer may not charge "a contingent fee for representing a defendant in a criminal case." For example, a lawyer cannot offer to charge a fee only if the defendant obtains an acquittal. Representation of criminal defendants must involve either hourly billing or a flat fee for certain types of cases (e.g., charging $100 for challenging traffic tickets, regardless of the time involved). This rule is absolute and applies to the pretrial stage (plea bargain negotiations and discovery), trials, and appeals of criminal convictions. Note that Rule 1.5(d) states that a lawyer cannot even agree to charge a contingent fee in a criminal case, even if the lawyer ends up not charging the contingent fee or decides to waive the fee entirely at some point

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. -Rule 1.5; ABA Formal Op. 93-379

Withholding client documents. A client fired an attorney after the attorney had completed 80 percent of the work involved in the representation. The client refuses to pay any of the fees that were in the original agreement at the beginning of representation. The client also demands that the attorney turn over all papers and documents relating to the representation. Must the attorney immediately return the client's documents regardless of the fees owed?

-No, because a lawyer may retain papers relating to the client to the extent permitted by law -unless state law provides otherwise, a lawyer may hold on to client documents as security until the client pays the fees that the client actually owes to the lawyer for work already performed -Comment 9 to Rule 1.16 says, "The lawyer may retain papers as security for a fee only to the extent permitted by law." Normally, a lawyer must return all of the client's documents promptly at the end of representation, even if the client has discharged the lawyer prematurely. The only exception is when the client has refused to pay fees that the lawyer clearly has earned. This does not apply to unearned fees that the lawyer may still hold in a trust account — discharged lawyers must return unused or unearned fees to the client immediately. This issue has appeared on the MPRE in recent years

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. -Rule 1.16(a)(2)

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.

Client uses lawyer's advice to commit fraud. A client met with an 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 did not give a recommendation to the client. The client went on to make the financial decisions and ultimately 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 likely consequences of a client's conduct -lawyers are allowed to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity -This question focuses on your understanding of Rule 1.2(d). Subsection (d) distinguishes the difference between a lawyer discussing with the client legal consequences (whether positive or negative) as opposed to assisting a client to engage in unlawful conduct. Lawyers may not advise clients to do anything fraudulent or criminal, nor may lawyers assist clients in committing fraud or other crimes (destruction of evidence, falsified business records, money laundering, and so on). On the other hand, lawyers may advise clients on whether proposed courses of action violate the law. It is perfectly appropriate, therefore, for lawyers to conduct research in good faith about the validity of existing law, or about whether some "questionable" proposed conduct really falls under the law's verbiage

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. -Rule 1.4

Shaming the victim. 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 tests link the client to the rape. The only evidence against the client, in fact, is the victim's memory of 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 being 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 the client is truly innocent of the rape in this case, and the client will probably receive an acquittal with or without this testimony attacking the victim's character and reputation. The attorney believes the court will allow him to withdraw from the case and that 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 the client is pursuing (acquittal) but disagrees with the actions the client plans to take?

-No, because even where the lawyer agrees with the overall objectives of the client, a lawyer may withdraw from a case if the client insists upon taking action that the lawyer considers repugnant. -correctly states Rule 1.16(b)(4), that a lawyer may withdraw from representing a client if the client insists upon taking action that the lawyer considers repugnant. Here, the attorney finds the client's potential testimony repugnant, so he would be allowed to withdraw from the case -Rule 1.16(b)(4) allows a lawyer to withdraw from representing a client if "the client insists upon taking action that he lawyer considers repugnant or with which the lawyer has a fundamental disagreement." Even so, upon termination or withdrawal, a lawyer shall take steps to protect the client's interest, and he or she shall not withdraw if doing so would have a materially adverse effect on the client

What he doesn't know can't hurt him. An attorney receives a report from a psychologist that provides the psychologist's professional opinion that the client is unstable. The psychologist's 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 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. -this is exactly the type of situation contemplated in Comment 7 to Rule 1.4 — one of the rare scenarios in which a lawyer may withhold information from his own client. The psychologist warned the lawyer that the client might do something dangerous if he were to see the report, and in such a case, it is reasonable for the lawyer to withhold the information, at least for the time being -This question addresses a specific exception in the Model Rules to the duty to communicate with clients, and in recent years, the MPRE has tested this specific exception. Comment 7 for Rule 1.4 states, "In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client."

A court appointed a local solo practitioner to represent and indigent criminal defendant. The attorney sought to decline the appointment on the basis that he did not have legal malpractice insurance; normally, he explained, he could manage his risk of liability by carefully selecting clients whose legal needs were safely within his area of expertise, but the new court appointment involved some unfamiliar legal issues. Moreover, clients who select their attorney themselves are far less likely to blame or sue the attorney than clients who have no choice about the representation. Is the attorney's motion to decline the court appointment likely to succeed?

-No, because lack of malpractice insurance is not good cause for withdrawal.

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. -ABA Formal Op. 18-481

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. -ABA Formal Ethics Op. 07-449

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. -Rule 1.2 Cmt. 9

A prospective client consulted with an attorney about the possibility of securing legal representation in a matter. During the conversation, the client shared openly with the attorney about the strengths and weaknesses of her legal claims, including some personal information that would be embarrassing if it became public. Some of the information indicated the prospective client may have already waived some of her legal claims, and she may have been partly at fault on other points. The attorney considered it for a few minutes and then declined the representation, because he felt he could not devote adequate time to the case, and he thought the case was too problematic. In addition, he was skeptical that the prospective client would be able to pay his fees. A few weeks later, some of the attorney's other matters settled sooner than expected, freeing up his schedule, and another prospective client came for a consultation, who turned out to be the opposing party in the legal matter that the attorney had recently declined. This new prospective client had already gathered some convincing evidence supporting his side, and was wealthy, so paying the attorney's fees was not an issue. Would it be proper for the attorney to proceed with representing this new prospective client?

-No, because the information learned from the first consultation with the other party would be so helpful to the new client, and so harmful to the individual the attorney declined to represent.

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 was representing a criminal defendant, and he agreed to meet with one of the defendant's co-conspirators to learn more about what happened and to discuss what to expect as the case proceeded. At the beginning of the meeting, the co-conspirator gave the attorney a dollar bill, saying, "This is to establish attorney- client privilege." The discussions then proceeded as planned. Later, the co-conspirator turned state's witness against the attorney's client, and near the end of the proceedings, the prosecution moved to disqualify the attorney due to his conflict of interest. Did it establish attorney-client privilege and a conflict of interest problem when the co-conspirator gave the attorney a dollar?

-No, giving money to the attorney did not create any attorney-client relationship. -Rule 1.18 Cmt. 2; United States v. Carlisle, No. 3:13-CR-012 JD, 2014 WL 958027, 2014 BL 67492 (N.D. Ind. Mar. 12, 2014)

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. -Rule 1.5; ABA Formal Op. 93-379

Returning unused funds to the client after discharge. A client fired an attorney after two weeks of representation, long before the matter was complete. 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 that point to the attorney. The attorney is very 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. -it is generally improper for a lawyer to retain either unused client funds or client documents, no matter how unfair it was for the client to discharge the lawyer -Rule 1.16(d) states: -Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. -It is normal for a lawyer to feel upset when discharged wrongfully by a client, but clients have a nearly absolute right to discharge lawyers (that is, to terminate the representation). Some lawyers in this situation may feel tempted by spite to be uncooperative with the client or the next lawyer that takes over the matter. Except where a lawyer legally holds client papers as security for unpaid legal fees, lawyers must promptly return all documents, personal property, and unused funds to the client. Failure to do so is a violation of the Model Rules, and a common cause for disciplinary actions (reprimand, suspension, or disbarment) against attorneys.

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. -Rule 1.5(a); ABA Formal Op. 94-389

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. -RESTATEMENT §34 - Reasonable and Lawful Fees

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. 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. -ABA Formal Op. 16-474

An attorney had a firm that specialized in criminal defense work. He managed a team of young lawyers that worked on DUI cases and other noncomplex cases; while he would handle the more complicated or high-profile cases himself. The attorney received a court appointment to represent a defendant charged in a series of automobile thefts, and quickly reached an impasse with the defendant about whether he should maintain his innocence in the face of overwhelming evidence of his guilt. The appointee-client declared that he would gladly represent himself and maintain his own innocence rather than accept the attorney's advice of agreeing to a guilty plea in exchange for leniency. The attorney knew that the county did not pay well for taking court appointments, and the defendant did not accept his advice, so he petitioned the court for permission to withdraw from the representation, and the court reluctantly agreed, but ordered the attorney to stay on the case as standby counsel. The defendant proceeded pro se, the jury convicted him, and the judge applied the maximum sentence. Could the attorney be subject to discipline for withdrawing from the representation?

-No, the attorney may ask for permission to withdraw as counsel, or to serve merely as standby counsel in this scenario.

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 -Rule 1.5(d)

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. -Rule 1.5(b)

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. -The facts above are like those described in a 2015 ABA Formal Opinion (state ethics opinions, such as Texas Ethics Opinion 635, reach a similar conclusion). The lawyer is, in practice, providing legal services to the individuals, this constitutes the practice of law, and therefore a client-lawyer relationship exists, even if it is limited in scope. The significance of this conclusion is that the attorney could still be subject to discipline for ethical violations related to the provision of these services, and depending on the situation, sometimes the limited representation still "counts" for purposes of checking for conflicts of interest, unless it is the type of situation described under Model Rule 6.5. Sometimes it is very clear that no attorney-client relationship exists, but there are also confusing situations, as when an attorney gives an oral or written disclaimer stating there is no such relationship, but then provides legal representation anyway.

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. -Rule 1.4; ABA Formal Op. 18-483

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. -Rule 1.5(d)(2)

An attorney undertook the representation of a client in a breach of contract claim and began working on the matter. A few weeks later, the opposing party in the litigation consulted with another lawyer in the attorney's firm about the same matter, but during the consultation, disclosed no confidential information except the identity of the other party and the nature of the claim. The other lawyer did a routine conflict check, quickly discovered the conflict with this new potential client, and immediately declined to represent the party. The lawyer and the attorney already representing the first client discussed the situation. Would it be proper for the attorney to disclose to his client that the opposing party had come in for a consultation with another lawyer in his firm?

-The attorney may not disclose to the client that the opposing party consulted with another lawyer in the firm but may continue to represent the client if the attorney does not use any information gleaned from the other party's consultation against the other party. -ABA Formal Op. 90-358, Rule 1.18

-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 -Rule 1.16(b)(7); ABA Formal Op. 18-482

An 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. -RESTATEMENT §35 Contingent-Fee Arrangements

You're fired! 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 this client until the end of the trial. May the client discharge the attorney after a trial has begun?

-Yes, a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services -clients have a nearly absolute right to discharge their attorneys at any time, for any reason. Usually, this can occur even in the middle of a trial, although in very rare instances a judge may forbid the discharge if it seems calculated merely to disrupt and delay the proceedings -As a rule, a client may discharge a lawyer at any time, for any reason (including a silly reason). The policy rationale behind this rule is that we should not force anyone to use a lawyer whom he or she finds unacceptable. There is one minor exception and one important caveat to this rule. There are rare instances in which a judge may forbid a client to drop a lawyer in the middle of trial, as when it appears that a (losing) party is merely firing their lawyer to disrupt or delay the proceedings or to vie for a mistrial/retrial. Normally, a judge would not interfere with a party's decision to find a new lawyer. Note that lawyers sometimes try to insist on continuing with the representation, especially if the lawyer is desperate for clients and the case is potentially lucrative. It is surprisingly easy to find state disciplinary actions involving lawyers who continued working on (and billing for) a client's case after the client had explicitly discharged the attorney -The important caveat is that the client who fires a lawyer will probably still have to pay any legal fees the lawyer has earned up to that point, and could be liable (that is, could be sued) if the client refuses to pay for the time the lawyer has already spent on the matter. This can become complicated if the lawyer has been working on a contingent fee basis and there is no verdict or award yet at the time of discharge. A court may either order that the discharged lawyer receive a pro-rata share of the eventual award (meaning a subsequent lawyer will have to split the normal contingent fee with the original lawyer), or the court may order that the discharged lawyer receive reasonable hourly fees for the time spent on the case, under a theory of quantum meruit. -For purposes of a multiple-choice question on the MPRE, begin your analysis by assuming the client will be free to discharge the lawyer at any time, even for a seemingly terrible reason (such as the client learning that the lawyer is a fan of a rival sports team)

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. -Rule 1.4 Cmt 7

A conflict of interest discovered during 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 attorney's clients, under a theory of vicarious liability. The two clients are 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 -Rule 1.16(a) requires lawyers to decline or withdraw from representation whenever continuation of the representation would result in a rule violation. A conflict of interest, especially between two parties in the same litigation, is a serious violation of the Model Rules, so the lawyer cannot continue -Rule 1.16(a)(1) requires a lawyer to decline or withdraw from representation if "the representation will result in violation of the rules of professional conduct or other law," even if the representation is already underway. This problem presents a relatively commonplace scenario — conflicts of interest are not always evident at first glance, so sometimes lawyers take on a client without realizing that another client will turn out to be the adverse party in the matter. Sometimes, completely new conflicts arise during the course of representation due to a corporate merger or acquisition of another client of the lawyer. New conflicts also develop through property transfers or an impleader/ joinder of an additional party. When a lawyer becomes aware of a conflict of interest or other violation of the Model Rules, there is a duty to withdraw. Remember that even where the Model Rules require a lawyer to withdraw, if litigation is underway, the lawyer will have to request (and will probably obtain) permission from the court

A defendant faced criminal charges for running a Ponzi scheme and an elaborate conspiracy to help others commit tax fraud. The government seized all his accounts and assets, so he had no funds to hire defense counsel. The court, therefore, appointed a local attorney to represent the defendant in the case. The attorney had spent his entire career up to that point exclusively handling traffic-court charges and driving-while-intoxicated cases. Realizing that the complex case was far outside his range of experience or ability, the attorney tried to decline the appointment, but the court required a "showing of incompetence." The attorney followed through with the showing and the court granted the request to withdraw. Were the attorney's actions proper?

-Yes, an attorney can seek withdrawal for good cause, such as lack of competence to handle certain specialized legal matters.

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. -ABA Formal Op. 18-481

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. -ABA Formal Op. 18-481

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 in their 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. -ABA Formal Op. 481

Attorney acquiescence. After an attorney has been representing a client in a transactional matter for six months, the client asks 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 will probably 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, and draft and deliver 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 -answer . . . correctly states Comment 9 to Rule 1.2, which prohibits a lawyer from drafting or delivering documents that he or she knows are fraudulent -While a lawyer shall abide by a client's decisions concerning the objectives of the representation, Comment 9 to Model Rule 1.2 prohibits a lawyer from knowingly assisting a client in committing a crime or fraud. A lawyer may advise a client on the consequence of his or her actions but cannot participate in the crime or fraud.

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. -Rule 1.2(d)

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. -Rule 1.5; ABA Formal Op. 93-379

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. -Rule 1.2(a)

The nonpaying client. A client, who happened to be a judge, hired an attorney to represent her in her divorce proceeding against her husband, who is guilty of marital infidelity. Their fee agreement stipulates that the attorney would bill the client every month for the work performed in the previous thirty 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 on the basis of unpaid fees?

-Yes, because a lawyer may withdraw if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled -accurately states the rule in 1.16(b)(5). Forcing lawyers to continue to represent delinquent clients would be an undue hardship for many, and could create a perverse incentive to decline representation for many needy clients -Rule 1.16(b)(5) permits "optional withdrawal" (the moniker used in the comments) for instances when the client is delinquent on paying the lawyer's bills: ". . . the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." Note that an attorney does not have to withdraw, and in practice, many lawyers continue the representation in hopes that the client will eventually pay.

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. -Rule 1.2 Cmt 9

Discussing negotiation strategies with the client. An attorney is a litigator and represents a client in a civil lawsuit in which the client is the defendant. 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 the hiring of experts or 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. More specifically, the attorney plans to elicit a mild, relatively innocuous admission during the first round of cross-examination, expecting opposing counsel to rehabilitate the witness on re-direct examination. The attorney then plans a short, direct, re-cross consisting of three yes-or-no questions that should elicit a devastating admission from the plaintiff, which opposing counsel is probably not anticipating. Attorney has not discussed this plan for cross and re-cross with Client. Even if the re-cross 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 re-cross of the plaintiff?

-Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail -correct because the question asks whether the lawyer can make decisions about cross-examinations without consulting with the client. This is exactly the type of scenario envisioned by the comments to Rule 1.4. -Comment 5 for Rule 1.4 provides an example that served as the basis for this question: For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all [the] important provisions with the client before proceeding to an agreement. In litigation, a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In other words, overall objectives and general strategies are items lawyers should discuss with clients, as well as decisions that involve significant additional costs, such as hiring experts or jury consultants. On the other hand, lawyers do not have to ask clients about whether to cross-examine a witness, whether to object to questions from the opposing party, or how to present an opening or closing argument.

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's testimony 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 -Rule 1.2(d)

Waiting for the second offer. An attorney represented a client in litigation over a breach of contract. After jury selection but before the opening arguments of trial the following Monday, the opposing party contacted the attorney with a settlement offer. The attorney, an experienced litigator, was familiar with opposing counsel from previous cases, and knew 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 his client at the courthouse the following Monday for the first day of trial, he mentioned that he was encouraged by the opposing party's initial offer the previous week, which he had declined, because it meant that a more generous offer was on the way any time. The client was surprised that his attorney had not consulted with him about the offer, but he accepted the attorney's explanation for declining it and agreed they would wait for 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 the inconvenience of going through the whole trial. 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. -Rule 1.4, Comment 2, states that a lawyer must promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what the client wants -This question returns to the basics of Rule 1.4(a) and the important rule that lawyers should always check with clients before accepting or rejecting a settlement offer, regardless of how unreasonable the offer seems, unless the client has explicitly pre-approved or pre-rejected such an offer. Comment 2 to Rule 1.4 offers a similar scenario as an example: "For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance . . . " This rule reflects important policy considerations as well as a bit of realism about legal practice — lawyers often focus on maximizing the payoff in a case, but clients may be trying to balance a number of other considerations as well. An unsophisticated client, unfamiliar with legal disputes and courts, may find litigation extremely stressful and would appreciate any opportunity to end the matter sooner rather than later; the stress level they feel from continuing may outweigh the additional value of waiting for a better settlement offer. On the other hand, even a sophisticated client (i.e., a large corporation that litigates frequently), may feel that the marginal value of a better settlement offer is still less than certain opportunity costs involved with waiting to resolve the case. Suppose the initial settlement offer was $50,000 and the second offer is double — $100,000. Now suppose that the client, a corporation, is simultaneously in merger talks with another company, or on the verge of an initial public stock offering, which might be worth tens of millions — an immediate windfall — to the corporation and its shareholders. If a merger or the stock offering has stalled because of this pending litigation, and the uncertainty about its eventual outcome, the $50,000 in additional money from waiting for a later settlement may be far less than the lost income from delaying a merger or stock offering even a few days or weeks. A corporate buyer or major investor could lose interest and move on in the meantime. A lawyer may indeed be correct that the opposing party will follow up with a much better offer, but the client may have other considerations that offset the value of waiting — and a litigator might not even know about his client being in secret merger talks with another corporation on the side. The client has a right to choose.

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. Rule 1.2(b)

Firing the lawyer before the big win. An attorney agreed over the phone to represent a client, and began 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 that portion of the fee, plus a $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 the non-refundable retainer, he would take a 25 percent contingent fee of any money that the other side had to pay the client as a result of the representation, whether in damages, as there 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. On the last day of the 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 recess 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 agreements incorporated by reference -The clearest violation here is that the attorney did not put the terms of the contingent fee in a writing signed by the client, as required by Rule 1.5(c). Incorporating an oral agreement by reference in a prior written agreement is clever but it does not satisfy the stated purposes or provisions of the rule, such as making clear to the client beforehand what percentages accrue to the lawyer, what litigation expenses the client must cover, and so on -This question ties together various rules regarding the lawyer-client relationship — its formation, termination, allocation of authority, and fees. Students should have spotted some potential violations immediately, such as the lawyer excluding the client from settlement decisions, the lawyer working under an oral agreement for two weeks without facts indicating whether the client understood the rates or fees that would accrue, and the oral agreement for a contingent fee.

Enforcing child support orders. A court orders that a particular client should receive child support from her ex-husband. The client's ex-husband stopped making child support payments twelve 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 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 asks the attorney to pay her court costs, as she cannot afford those either. The attorney prepares a contract that states the attorney will only be paid for his representation if the client prevails on the enforcement motion, but that court costs will be reimbursed by the client within thirty 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. -restates the exception delineated in Comment 6 to Rule 1.5. After a divorce or custody battle is already over, in which the court has ordered child support payments, when the payor becomes delinquent, the receiving party may retain an attorney on a contingent fee basis to seek enforcement of the order. This is more analogous to a contract enforcement action than a dissolution of marriage. Presumably, the amount of the award is already set, so a contingent fee arrangement would give the lawyer no financial incentive to worsen the resentment between the parties -Rule 1.5(d)(1) prohibits contingent fees in divorce or child custody cases. The policy concern behind this rule is to avoid giving family law attorneys any incentive to make a divorce or child custody proceeding more acrimonious than it already is, or more melodramatic, merely to earn a higher fee. Nevertheless, Comment 6 to Rule 1.5 qualifies this prohibition with a specific exception: "This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns." The MPRE in the recent past has included a question about this specific exception

It all worked out in the end. An attorney has represented his client in the past on various transactional matters. They have always operated under an oral agreement about the fees, and they have never had a dispute over fees in the past — the attorney 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 time his attorney had to put into the case, as the client would still receive the same share of whatever amount they won. Given their long history of working together, the attorney offers to set the contingent fee below the rate charged by other attorneys in the area, and they agree over the phone on a 25 percent contingent 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 percent 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 formalized in writing at the beginning of representation -Rule 1.5(c) states the rule in absolute terms: A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party -The Model Rules merely express a "preference" for written fee agreements in general, but contingent fee agreements must always be in writing at the outset of the representation. This is a clear-cut rule that lends itself easily to multiple-choice questions. Do not let the extra facts mislead you — an attorney's conduct (such as a failure to put contingent fee arrangements in writing) can constitute a violation of the Model Rules even if the client is pleased with the outcome and there appear to be no adverse consequences. Remember that other lawyers (including those in one's own firm) who learn of rule violations may have a duty to report their colleague to the disciplinary authorities.

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. -Rule 1.4 Cmt 3

Written agreements not always required. An attorney has represented a client on various small matters in the past. 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 the client may have. The attorney and the client never formalize 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 agreements in writing, it is not required in this type of case -This is the type of scenario in which fee agreements do not have to be in writing, even though it is preferable to have them memorialized in text to avoid future misunderstandings -purpose of this question is to remind students that the absolute requirement for written fee agreements applies in only two scenarios — contingent fees and fees shared between lawyers from different firms that worked on the case. There is a strong preference for written fee agreements in all other situations (and it is certainly a prudent habit in legal practice), but it is not an absolute requirement

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. -Rule 1.2 Cmt. 7

Waiving the right to a jury trial. An attorney represents a client who is 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 (voir dire, etc.), and cannot really afford it, so the client tells his attorney that he does not want a jury trial, but rather a bench trial. The attorney is convinced that his client is innocent of the crimes charged, and that a bench trial is likely to result in a wrongful conviction in this particular case, given some of the evidentiary issues. The attorney postpones notifying the court that the defendant will waive his right to a jury trial, in hopes of changing the client's mind. The court schedules jury selection, and the attorney appears and participates in the voir dire 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 this 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 the right to a jury trial. -answer . . . restates the rule from 1.2(a) nearly verbatim. Even where the lawyer is certain that a jury trial would be better (or worse) in a given case, the client must have the final say in this decision. Note that this is true even when the lawyer is correct and the client is wrong (as in this problem). This question also highlights the fact that the lawyer could be subject to discipline even when his unauthorized decisions worked out well for the client — the Model Rules focus on whether the lawyer complied with the Rules, not on the actual consequences of the lawyer's actions -Rule 1.2(a) includes, among other requirements, "In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." In civil litigation, lawyers must abide by the client's wishes regarding accepting or rejecting settlement offers (which means lawyers should check with the client whenever the opposing party extends an offer). In the criminal context, there is a heightened concern to let the client control certain major decisions — whether to plead guilty, whether to demand a jury trial, and whether to testify. Even though lawyers will often have strong opinions on these issues, the client has the final say on these matters

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. -Rule 1.5 Cmt 3

Several ways to structure a large donation. A client hired an attorney to handle a transactional matter. The client, a billionaire, wants to devote several million dollars to philanthropy. There are several alternative ways to achieve the client's goals — incorporating a 501 (c)3 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 recordkeeping. 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 the attorney believed the client would find the details tiresome and confusing. The attorney set up a private foundation for the client because this seemed to provide his client with the greatest immediate tax benefits and the highest degree of control in the long term. 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. The attorney believed the pros outweighed the cons in this 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 costs 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 the Rules of Professional Conduct require a lawyer to consult with the client about the means to be used to accomplish the client's objectives -uses the same verbiage found in Comment 3 for Rule 1.4 — lawyers must discuss with their clients the means they will use to achieve the goals of the representation. A lawyer could be subject to discipline (reprimand, license suspension, or disbarment) for making such a choice without consulting the client -Comments 2 and 3 for Model Rule 1.4 require a lawyer to have a "reasonably" thorough discussion with the client about which means to use in achieving the objectives of the client. Legal transactions and legal disputes normally present several alternative approaches that a lawyer could take. Each approach offers a set of tradeoffs in terms of financial cost, time/delay, risk, and potential payoffs. A lawyer may not need to clear every methodological decision with a client (e.g., which day of the month is best for filing applications with government agencies, or what language to use in a letter to another party). Nevertheless, the choice of which approach to take overall should rest with the client, who must personally shoulder the costs, risks, delays, and so on. This problem illustrates the point with a rather common scenario — a wealthy client who wants to donate a large sum to charity, and who must balance various tax consequences with the desire to control how the money is used, as well as balancing short-term versus long-term impact. A client has a right to make these delicate decisions, with the attorney's advice and counsel.

A share of the divorce proceeds. 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, $5,000, but also offers to pay him 10 percent 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 arrangement for a fee in a domestic relations matter, the amount of which was contingent upon the amount of alimony, support, or property settlement. -correctly paraphrases Rule 1.5(d)(1): "A lawyer shall 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." -Rule 1.5(d)(1) strictly forbids contingent fees in domestic relations cases. The policy rationale for this prohibition is that contingent fees would give lawyers a perverse incentive to make the divorce more acrimonious or unnecessarily traumatic for the parties in order to obtain a larger share for their client, and therefore, a larger sum for the lawyer. This is a bright-line rule that lends itself easily to multiple-choice questions, so students should prepare to encounter it on the MPRE

After it's over. 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 the attorney would receive a tiered contingent fee in the case: 25 percent if the case settled before trial, 30 percent if they went to trial and won, and 35 percent 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 that 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's 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 toward a 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. He telephoned Client with the good news, and explained that he would deduct his 25 percent contingent fee, as they had agreed, and would send Client the remainder of the settlement funds. At that time, there were no outstanding unpaid expenses or court costs. The client was glad to hear the news, and the attorney promptly sent the client a check for 75 percent 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 attorney's 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 -in this case, the lawyer failed to send a written statement at the conclusion of the matter, so the lawyer's actions were improper -Rule 1.5(c) requires attorneys to provide a written statement at the conclusion of the representation, stating the outcome and delineating any unused retainer funds that the lawyer is returning. This requirement avoids client confusion about the outcome of their case (for example, a client may not understand that a "remand" means they will have to go through another trial), and it avoids misunderstandings about whether the lawyer is continuing to represent the client going forward. The MPRE regularly tests this rule

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. -Rule 1.5(c)

"Don't even call me." 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 representative. The client is the plaintiff in the case, and has told the attorney on several occasions that she will not consider 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 nearly identical contract term. 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 percent, 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 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 Client for breaching their contract. May Attorney reject this offer without first consulting with Client?

-Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer. -Comment 3 for Rule 1.2 states, "At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation." Here, the client specifically instructed the lawyer not to call her if the opposing party offers less than $100,000. Therefore, the attorney may reject the offer without first consulting with his client -The MPRE often includes a question about lawyers accepting or rejecting settlement offers without checking first with the client. The general rule is that lawyers must always check with the client before accepting or rejecting settlement offers or plea bargains, even if the lawyer personally believes the offer is unfavorable and unreasonable (and the lawyer is free to explain such concerns to the client). Even so, the Model Rules permit pre-authorization by a client to accept or reject certain offers, as in this case.

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 prosecutor indeed 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. -Rule 1.2 Cmt 3

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

-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. -Rule 1.2 Cmt. 7

In response to an attorney's advertising, which describes the attorney's education, experience, areas of practice, and contact information, and individual sent an email to the attorney describing their legal problem at length, including many personal details. Some of the information was unfavorable to the individual's legal interests. The attorney, who had never met or had any contact with the individual, read the long email in its entirety, and immediately sent a terse reply declining the representation. There was no consultation with the individual, and the attorney did not promise to provide representation. A few days later, the attorney received an inquiry from the opposing party in the case, and he agreed to represent the opposing party, and used information gleaned from the other individual's email to prevail in the matter. Was the attorney's conduct proper?

-Yes, because the individual who sent the original email was not a prospective client for purposes of the Model Rules, and the attorney had no duty to keep the information confidential. -Rule 1.18 Cmt. 2

A family law attorney represented a client in a divorce proceeding. Early in the representation, before the client's spouse had retained counsel, the attorney advised her client to meet with other lawyers in the area for the sole purpose of creating a conflict of interest, that is, so that the client's spouse would be unable to retain the other lawyers for representation in the divorce. The client did so, and scheduled consultations with several other divorce attorneys in a "taint shopping" campaign, but he never intended to retain any of their services. Could the attorney be subject to discipline for instructing the client to do this?

-Yes, because this is dishonest, interferes with the administration of justice, and has no purpose other than to interfere with the opposing party's ability to form a client-lawyer relationship. -Rule 1.18 Cmt. 2; Ill. Ethics Op. 12-18 (2012)

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. -Rule 1.16 Cmt. 7

Client with a mental impairment. 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 of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The client's family is trying to have the client institutionalized involuntarily, 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 the attorney to defend him against the legal proceedings to have the client institutionalized permanently. Having researched this type of case, the attorney knows that 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 the client his decision to seek a change of venue that would be more favorable to the client under that jurisdiction's recent appellate decisions. Switching venue, however, will mean traveling much further (more than an hour) 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 -states the exception delineated in Comment 6 for situations where fully informing a client may be impracticable where the client is a child or suffers from diminished capacity -As a rule, a lawyer has a duty to keep the client informed of any circumstances or decisions that require the client's consent. Nevertheless, Comment 6 to Model Rule 1.4 provides for the situation where fully informing the client may be impracticable because the client is a child or suffers from diminished capacity. A lawyer who represents a client that suffers from diminished capacity should still try to maintain a normal client-lawyer relationship, but lawyers make some decisions on behalf of clients that would ordinarily require a client's consent

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. -Restatement § 18 - Client-Lawyer Contracts

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.

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) -ABA Formal Op. 16-474

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 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).

-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). -ABA Formal Op. 16-474

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. -Rule 1.5 Cmt. 5.

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 understands and accepts such practice at the commencement of the client- lawyer relationship, and the periodic increases are reasonable under the circumstances. -Rule 1.5(b); ABA Formal Op. 11-458

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 -Restatement § 18 - Client-Lawyer Contracts

A family law attorney represented a client in a divorce proceeding. Early in the representation, before the client's spouse had retained counsel, the attorney advised her client to meet with other lawyers in the area for the sole purpose of creating a conflict of interest, that is, so that the client's spouse would be unable to retain the other lawyers for representation in the divorce. The client did so; the client scheduled consultations with several other divorce attorneys in a "taint shopping" campaign, but he never intended to retain any of their services. Could one of the other lawyers be subject to discipline for representing the spouse anyway, if they were lucky enough to have evidence to show that the original consultation was merely taint-shopping?

-Yes, the person was not genuinely seeking legal representation, so the lawyer would have no duty to protect the confidentiality of the information disclosed and no conflict of interest. -Rule 1.18 Cmt. 2; Ill. Ethics Op. 12-18 (2012)

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 that 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. -Rule 1.2 Cmt. 6

Insurers and attorneys. 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 homeowner's policy for damage to the policyholder's residential real estate, and 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 and the fact that the known killer had escaped conviction on a technicality. In a cool and calculated matter, the attorney focused his work exclusively on the property damage from the incident and the premises liability, and obtained a 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. -In this case, the lawyer has been retained by an insurer — the client to represent the insured (the client). This limited representation is appropriate because the client has limited the objectives for the lawyer, specifically pertaining to the insurance coverage -Comment 6 to Rule 1.2 states, "The scope of services to be provided by a lawyer may be limited by an agreement with the client." It is very common for insurers to hire the lawyers representing either plaintiffs or defendants in tort litigation. While the lawyer in such a case does have a duty of loyalty to the individual policyholder represented, the scope of such representation typically confines itself to the coverage of the original insurance policy. The situation differs from one in which a client finds her own lawyer, and would normally want the lawyer to bring other legal considerations to the attention of the client besides the immediate objective of the current representation.

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. -Rule 1.4 Cmt 5