II. The Client-lawyer Relationship
Quiz for Section II: The Client-Lawyer Relationship
- 1.Attorney represented Landlord in a variety of matters over several years. Plaint, an elderly widow living on public assistance, filed suit against Landlord alleging that Landlord withheld without justification the security deposit on a rental unit that Plaint vacated three years ago. She brought the action for herself, without counsel, in small claims court. Attorney investigated the claim and learned that it was legally barred by the applicable statute of limitations, although Plaint's underlying claim was meritorious. Attorney told Landlord of the legal defense, but emphasized that Plaint's claim was just and that, in all fairness, the security deposit should be returned to Plaint. Attorney told Landlord: "I strongly recommend that you pay Plaint the full amount with interest. It is against your long-term business interests to be known in the community as a landlord who routinely withholds security deposits even though the tenant leaves the apartment in good condition. Paying the claim now will prevent future headaches for you." Was Attorney's conduct proper?
- A.
Yes, if Landlord did not object to Attorney's advice and paid Plaint's claim.
- B.
Yes, because Attorney may refer to both legal and nonlegal considerations in advising a client.
- C.
No, unless Attorney's engagement letter informed Landlord that Attorney's advice on the matter would include both legal and nonlegal considerations.
- D.
No, because in advising Landlord to pay the full claim, Attorney failed to represent zealously Landlord's legal interests.
- 2.Attorney wants to make it easier for her clients to pay their bills for her fees. Which of the following would be proper for Attorney? I. Accept bank credit cards in payment of Attorney's fees. II. Arrange for clients to obtain bank loans for the purpose of paying Attorney's fees. III. If a case is interesting, suggest that the client give Attorney publication rights concerning the case as partial payment of the fee.
- A.
II only
- B.
I and II, but not III
- C.
I, II, and III
- D.
Neither I, II, nor III
- 3.Attorney, who was recently admitted to the bar, has been appointed by the court as counsel for Deft, an indigent defendant charged with a felony. After consulting with Deft and attempting for two days to prepare the case for trial, Attorney became convinced that he lacked the knowledge and experience to represent Deft effectively. Which of the following would be proper for Attorney? I. Request permission of the court to withdraw from representing Deft because Attorney knows that he is not competent to handle the case. II. Request the court to appoint experienced co-counsel and grant a continuance to enable co-counsel to prepare the case. III. Explain the circumstances to Deft and, if Deft consents, proceed to represent Deft alone to the best of Attorney's ability.
- A.
I only
- B.
I and II, but not III
- C.
II and III, but not I
- D.
I, II, and III
- 4.Client has retained Attorney to represent Client in a contract suit. Attorney's retainer agreement provided that Attorney's fees would be based on a fixed hourly rate, payable at the end of each calendar month. Two months before trial, Client fell behind in the payment of Attorney's monthly billing for fees. Attorney included the following statement on Attorney's last billing to Client: "Your account is more than thirty days past due. If amounts due are not paid promptly in accordance with our agreement, I will terminate the representation. If you cannot pay the amount due, I will accept an assignment of your cause of action as security for your fee to me." Two weeks after the last billing, Attorney telephoned Client and told Client that Attorney would withdraw from representing Client if the bill was not paid within forty-eight hours or adequate security given for its payment. If the bill remains unpaid or unsecured after forty-eight hours, it would be proper for Attorney to: I. upon notice to Client, move the court for permission to withdraw. II. turn Client's file over to another experienced lawyer in town and notify Client that Attorney no longer represents Client. III. accept an assignment of Client's cause of action as security for Attorney's fee.
- A.
I only
- B.
II only
- C.
I and II, but not III
- D.
I, II, and III
- 5.Attorney Alpha represents Client, the plaintiff in a medical malpractice case. Alpha's contract with Client provides for a contingent fee of 20% of the recovery by settlement and 30% if the case is tried, with a total fee not to exceed $50,000. Alpha associated Attorney Beta, a sole practitioner, in the case, with Client's written consent and after full disclosure of the fee agreement between Alpha and Beta. Beta is both a medical doctor and a lawyer and is well qualified by experience and training to try medical malpractice cases. The fee agreement between Alpha and Beta reads as follows: The total fee in this case is 20% of recovery by settlement and 30%, if tried, with a maximum fee of $50,000. Alpha will help with discovery and will be the liaison person with Client. Beta will prepare the case and try it if it is not settled. Alpha and Beta will divide the fee, 40% to Alpha and 60% to Beta. Are Alpha and Beta subject to discipline for their agreement for division of the fee?
- A.
Yes, unless Client's consent is in writing.
- B.
Yes, because Alpha will not try the case.
- C.
No, if the division of the fee between Alpha and Beta is in proportion to actual work done by each.
- D.
No, because the total fee does not differ from that contracted for by Alpha with Client.
- 6.Attorney Alpha was retained by Passenger, a passenger on a bus, who had been injured in a collision between the bus and a truck. Passenger paid Alpha a retainer of $1,000 and agreed further that Alpha should have a fee of 25% of any recovery before filing suit, 30% of any recovery after suit was filed but before judgment, and 35% of any recovery after trial and judgment. Alpha promptly called the lawyer for the bus company and told him she was representing Passenger and would like to talk about a settlement. Alpha made an appointment to talk to the lawyer for the bus company but did not keep the appointment. Alpha continued to put off talking to the lawyer for the bus company. Meanwhile, Passenger became concerned because she had heard nothing from Alpha. Passenger called Alpha's office but was told Alpha was not in and would not call back. Passenger was told not to worry because Alpha would look after her interests. After ten months had passed, Passenger went to Attorney Beta for advice. Beta advised Passenger that the statute of limitations would run in one week and, with Passenger's consent, immediately filed suit for Passenger. Alpha, upon Passenger's demand, refunded the $1,000 Passenger had paid. Is Alpha subject to discipline?
- A.
Yes, unless Alpha's time was completely occupied with work for other clients.
- B.
Yes, because Alpha neglected the representation of Passenger.
- C.
No, because Passenger's suit was filed before the statute of limitations ran.
- D.
No, because Alpha returned the $1,000 retainer to Passenger.
- 7.Alpha and Beta are members of the bar in the same community but have never practiced together. Beta is a candidate in a contested election for judicial office. Beta is opposed by Delta, another lawyer in the community. Alpha believes Beta is better qualified than Delta for the judiciary and is supporting Beta's candidacy. Which of the following would be proper for Alpha? I. Solicit public endorsements for Beta's candidacy by other attorneys in the community who know Beta, including those who are likely to appear before Beta if Beta becomes a judge. II. Solicit contributions to Beta's campaign committee from other attorneys in the community, including those who are likely to appear before Beta if Beta becomes a judge. III. Publicly oppose the candidacy of Delta.
- A.
I only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
- 8.Deft, who has been indicted for auto theft, is represented by Attorney. Prosecutor reasonably believes that Deft committed the offense, but, because of Deft's youth, it is in the interest of justice to permit Deft to plead guilty to the lesser offense of "joy-riding" in return for an agreement by Prosecutor to recommend probation. Prosecutor has so advised Attorney, but Attorney told Prosecutor she would not plea bargain and would insist on a jury trial. Attorney informed Deft of Prosecutor's offer and advised Deft not to accept it. Deft followed Attorney's advice. Attorney is a candidate for public office, and Prosecutor suspects that Attorney is insisting on a trial of the case to secure publicity for herself. Assume for the purposes of this question ONLY that Deft was tried, convicted, and sentenced to prison for two years. Must Prosecutor report to the disciplinary authority his suspicions about Attorney's conduct of the case?
- A.
Yes, because Deft suffered a detriment from Attorney's refusal to plea bargain.
- B.
Yes, if Attorney in fact received widespread publicity as a result of the trial.
- C.
No, unless Prosecutor has knowledge that Attorney's refusal to plea bargain was due to personal motives.
- D.
No, if Attorney zealously and competently represented Deft at the trial.
- 9.Plaintiff and Defendant are next-door neighbors and bitter personal enemies. Plaintiff is suing Defendant over an alleged trespass. Each party believes, in good faith, in the correctness of his position. Plaintiff is represented by Attorney Alpha, and Defendant is represented by Attorney Beta. After Plaintiff had retained Alpha, he told Alpha "I do not want you to grant any delays or courtesies to Defendant or his lawyer. I want you to insist on every technicality." Alpha has served Beta with a demand to answer written interrogatories. Beta, because of the illness of his secretary, has asked Alpha for a five-day extension of time within which to answer them. Is Alpha subject to discipline if she grants Beta's request for a five-day extension?
- A.
Yes, because Alpha is acting contrary to her client's instructions.
- B.
Yes, unless Alpha first informs Plaintiff of the request and obtains Plaintiff's consent to grant it.
- C.
No, unless granting the extension would prejudice Plaintiff's rights.
- D.
No, because Beta was not at fault in causing the delay.
- 10.Attorney, a sole practitioner, limits his practice to personal injury cases. Attorney regularly places an advertisement in local newspapers. The advertisement contains the following statement: "Practice limited to personal injury cases, including medical malpractice." After seeing one of Attorney's advertisements, Baker approached Attorney for representation in a medical malpractice case. After a 30-minute interview Attorney told Baker: "I'm sorry, but I am very busy and your case appears to be very complicated. I would be happy to refer you to another lawyer who regularly practices in that field and who may have more room in her schedule. You should see another lawyer promptly before the statute of limitations expires and you lose your right to bring the lawsuit." Although Attorney did not charge Baker for the interview, Baker was upset at the waste of 30 minutes of her time. Baker did not contact another lawyer until eight months later, when she learned that the statute of limitations on her claim had expired six months after her interview with Attorney. In fact, Baker had a meritorious medical malpractice claim. Is Attorney subject to civil liability?
- A.
Yes, because Attorney falsely advertised his availability for medical malpractice cases.
- B.
Yes, because Attorney did not advise Baker as to the date the statute of limitations would expire.
- C.
No, because Attorney did not violate any duty owed to Baker.
- D.
No, because Attorney offered to refer Baker to another medical malpractice lawyer.
- 11.Attorney Alpha is skilled in trying personal injury cases. Alpha accepted the representation of Plaintiff in a personal injury case on a contingent fee basis. While preparing the case for trial, Alpha realized that the direct examination and cross-examination of the medical experts would involve medical issues with which Alpha was not familiar and, as a consequence, Alpha might not be able to represent Plaintiff competently. Without informing Plaintiff, Alpha consulted Beta, who is both a lawyer and a medical doctor and who is a recognized specialist in the care and treatment of injuries of the type sustained by Plaintiff. Alpha and Beta agreed that Beta would participate in the trial to the limited extent of conducting the direct examination and cross-examination of the medical experts and that Alpha would divide the fee in proportion to the services performed and the responsibility assumed by each. Was the arrangement between Alpha and Beta proper?
- A.
Yes, because the fee to be paid by Plaintiff was not increased by reason of Beta's association.
- B.
Yes, because the fee would be divided in proportion to the services performed and the responsibility assumed by each.
- C.
No, because Plaintiff was not advised of the association of Beta.
- D.
No, unless, upon conclusion of the matter, Alpha provides Plaintiff with a written statement setting forth the method of determining both the fee and the division of the fee with Beta.
- 12.Attorney represents Client, the plaintiff in a civil action that was filed a year ago and is about to be set for trial. Client informed Attorney that he could be available at any time during the months of October, November, and December. In discussing possible trial dates with opposing counsel and the court clerk, Attorney was advised that a trial date on October 5 was available and that the next available trial date would be December 10. Without first consulting Client, Attorney requested the December 10 trial date because she was representing Deft, the defendant in a felony criminal trial that was set for October 20 and she wanted as much time as possible to prepare for that trial. Was it proper for Attorney to agree to the December trial date without obtaining Client's consent?
- A.
Yes, unless Client will be prejudiced by the delay.
- B.
Yes, because a criminal trial takes precedence over a civil trial.
- C.
No, because Attorney should manage her calendar so that her cases can be tried promptly.
- D.
No, unless Attorney was court-appointed counsel in the criminal case.
- 13.Attorney is employed by Client, a fugitive from justice under indictment for armed robbery. Attorney, after thorough legal research and investigation of the facts furnished by Client, reasonably believes the indictment is fatally defective and should be dismissed as a matter of law. Attorney advised Client of his opinion and urged Client to surrender. Client told Attorney that she would not surrender. Attorney informed the district attorney that he represented Client and that he counseled Client to surrender, but that Client refused to follow his advice. Attorney has not advised Client on how to avoid arrest and prosecution and does not know where Client is hiding. Is Attorney subject to discipline if he continues to represent Client?
- A.
Yes, because Client is engaged in continuing illegal conduct.
- B.
Yes, because client refused to accept Attorney's advice and surrender.
- C.
No, because Attorney is not counseling Client to avoid arrest and prosecution.
- D.
No, because Attorney reasonably believes the indictment is defective.
- 14.Attorney entered into a written retainer agreement with Deft, who was the defendant in a criminal case. Deft agreed in writing to transfer title to Deft's automobile to Attorney if Attorney successfully prevented Deft from going to prison. Later, the charges against Deft were dismissed. Is Attorney subject to discipline for entering into this retainer agreement?
- A.
Yes, because Attorney agreed to a fee contingent on the outcome of a criminal case.
- B.
Yes, because a lawyer may not acquire a proprietary interest in a client's property.
- C.
No, because the charges against Deft were dismissed.
- D.
No, because the retainer agreement is in writing.
- 15.Attorney is representing Client, the plaintiff in a personal injury case, on a contingent fee basis. Client is without resources to pay for the expenses of the investigation and the medical examinations necessary to prepare for trial. Client asked Attorney to pay for these expenses. Attorney declined to advance the funds but offered to guarantee Client's promissory note to a local bank in order to secure the funds needed to cover those expenses. Client has agreed to reimburse Attorney in the event Attorney incurs liability on the guaranty. Is Attorney subject to discipline if she guarantees Client's promissory note?
- A.
Yes, because Attorney is lending her credit to Client.
- B.
Yes, because Attorney is helping to finance litigation.
- C.
No, because the funds will be used for trial preparation.
- D.
No, because Attorney took the case on a contingent fee basis.
- 16.Attorney Alpha represents Wife in a marriage dissolution proceeding that involves bitterly contested issues of property division and child custody. Husband is represented by Attorney Beta. After one day of trial, Husband, through Beta, made a settlement offer. Because of Husband's intense dislike for Alpha, the proposed settlement requires that Alpha agree not to represent Wife in any subsequent proceeding, brought by either party, to modify or enforce the provisions of the decree. Wife wants to accept the offer, and Alpha believes that the settlement offer made by Husband is better than any award Wife would get if the case went to judgment. Is it proper for Alpha to agree that Alpha will not represent Wife in any subsequent proceeding?
- A.
Yes, because the restriction on Alpha is limited to subsequent proceedings in the same matter.
- B.
Yes, if Alpha believes that it is in Wife's best interests to accept the proposed settlement.
- C.
No, because the proposed settlement would restrict Alpha's right to represent Wife in the future.
- D.
No, unless Alpha believes that Wife's interests can be adequately protected by another lawyer in the future.
- 17.The law firm of Able & Baker agreed to represent Client in various business matters. The written retainer agreement called for Client to pay Able & Baker's hourly rates of $180 per hour for a partner's time and $110 per hour for an associate's time. The representation proceeded. Able & Baker submitted monthly bills, which Client paid promptly. After two years, Able & Baker decided to increase their hourly rates by $10. Able & Baker thereafter billed Client at their new rates, but did not specifically inform Client of the increase. Client continued to pay monthly bills promptly. Are Able & Baker subject to discipline?
- A.
Yes, because the entire original fee agreement was required to be in writing.
- B.
Yes, because Client did not consent to the increase.
- C.
No, if the $10 hourly increase is reasonable.
- D.
No, because Client agreed in writing to pay Able & Baker's hourly rate.
- 18.Attorney's standard retainer contract in divorce cases provides for the payment of a fee of one-third of the amount of alimony or property settlement secured by Attorney. Attorney declines to represent clients who do not agree to this arrangement. Is Attorney's standard retainer contract proper?
- A.
Yes, because clients often prefer to pay a lawyer a fee based on the outcome of the case.
- B.
Yes, if a fee of one-third is not excessive.
- C.
No, because a lawyer may not acquire a proprietary interest in a cause of action.
- D.
No, because the fee is contingent.
- 19.Attorney has been representing Client in a matter in litigation. During protracted pretrial proceedings, Client complained bitterly about the time and expense involved and insisted that Attorney take steps to terminate the pretrial proceedings. Attorney believes that to do so would jeopardize Client's interests and has so informed Client. Attorney believes that the case cannot be adequately prepared for trial without further pretrial proceedings that will require an additional six months' delay and involve further expense. Client insists that Attorney forego any further pretrial proceedings and set the case for trial at the earliest available date. There are several other competent lawyers who are willing to undertake the representation. Is it proper for Attorney to ask leave of the court to withdraw?
- A.
Yes, because a lawyer may discontinue representation in a civil case at any time before trial.
- B.
Yes, because Client's conduct makes it unreasonably difficult for Attorney to represent Client effectively and competently.
- C.
No, because Attorney must follow Client's instructions.
- D.
No, unless Client consents to Attorney's withdrawal.
- 20.Attorney represented Plaintiff in an action against several defendants. The retainer agreement provided that Plaintiff would pay all costs and expenses of litigation and would, on demand, reimburse Attorney for any costs or expenses advanced by Attorney. After serving process on two defendants, Attorney had difficulty locating and serving the remaining defendants. Plaintiff approved the hiring of an investigator to locate and serve the defendants, and Attorney advanced the costs for the investigator. When Attorney asked Plaintiff for reimbursement, Plaintiff refused to pay. Attorney then told Plaintiff that Attorney would do no more work on the case until Attorney was reimbursed for the amount advanced. Thereafter, one of the defendants filed a counterclaim that required a responsive pleading within thirty days. Because Attorney had not been paid, Attorney permitted the time to respond to the counterclaim to expire without filing a responsive pleading, and a default was entered on the counterclaim. Later, Plaintiff reimbursed Attorney for the costs Attorney had advanced, and Attorney was successful in having the default on the counterclaim set aside. The case was tried, and Plaintiff prevailed on Plaintiff's complaint, and the counterclaimant recovered nothing. Is Attorney subject to discipline for not initially filing a responsive pleading to the counterclaim?
- A.
Yes, because Attorney neglected Plaintiff's cause.
- B.
Yes, unless Attorney had asked leave of court to withdraw.
- C.
No, because Plaintiff breached the agreement to reimburse Attorney.
- D.
No, because Plaintiff did not sustain any prejudice as a result of Attorney's action.
- 21.Client was an experienced oil and gas developer. Client asked Attorney for representation in a suit to establish Client's ownership of certain oil and gas royalties. Client did not have available the necessary funds to pay Attorney's reasonable hourly rate for undertaking the case. Client proposed instead to pay Attorney an amount in cash equal to 20% of the value of the proceeds received from the first year royalties Client might recover as a result of the suit. Attorney accepted the proposal and took the case. Is Attorney subject to discipline?
- A.
Yes, because the agreement gave Attorney a proprietary interest in Client's cause of action.
- B.
Yes, unless the fee Attorney receives does not exceed that which Attorney would have received by charging a reasonable hourly rate.
- C.
No, because Client rather than Attorney proposed the fee arrangement.
- D.
No, because Attorney may contract with Client for a reasonable contingent fee.
- 22.For many years, Attorney has served as outside counsel to Corp, a corporation. Shortly after a change in management, Attorney discovered what she reasonably believed to be a material misstatement in a document she had drafted that Attorney was about to file on Corp's behalf with a government agency. Attorney advised Corp's Board of Directors that filing the document was probably criminal. However, the Board disagreed that there was any material misstatement and directed Attorney to proceed with the filing. When Attorney indicated her intention to resign, Corp argued that a resignation at this time would send a signal that there was a problem with the filing. Corp urged Attorney to continue the representation, but offered to use inhouse counsel to complete the work on the filing. Although she does not know for certain that filing the document is illegal, Attorney reasonably believes that it is. In any event, Attorney is personally uncomfortable with the representation and wants to withdraw. May Attorney withdraw from her representation of Corp?
- A.
Yes, because withdrawal is permitted but not required when a client insists on conduct which the lawyer reasonably believes, but does not know, will be criminal.
- B.
Yes, because withdrawal is required when a client insists on conduct which the lawyer reasonably believes, but does not know, will be criminal.
- C.
No, if Corp is correct that withdrawal would breach confidentiality by sending a signal that the filing is problematic.
- D.
No, if Attorney's withdrawal as outside counsel might affect Corp's ability to complete the filing in a timely fashion.
- 23.Attorney experienced several instances when clients failed to pay their fees in a timely manner, but it was too late in the representation to withdraw without prejudicing the clients. To avoid a recurrence of this situation, Attorney has drafted a stipulation of consent to withdraw if fees are not paid according to the fee agreement. She proposes to have all clients sign the stipulation at the outset of the representation. Is it proper for Attorney to use the stipulation to withdraw from representation whenever a client fails to pay fees?
- A.
Yes, because a lawyer may withdraw when the financial burden of continuing the representation would be substantially greater than the parties anticipated at the time of the fee agreement.
- B.
Yes, because the clients consented to the withdrawal in the stipulation.
- C.
No, because a client's failure to pay fees when due may be insufficient in itself to justify withdrawal.
- D.
No, unless clients are provided an opportunity to seek independent legal advice before signing the stipulation.
- 24.An attorney is a general practitioner with extensive experience in personal injury litigation, including legal and medical malpractice. A man contacted the attorney by telephone and requested that the attorney represent the man in a legal malpractice case that the man wanted to file against the lawyer who handled the man's divorce. The attorney refused even to meet with the man, saying: "Look, I just finished renewing my own malpractice insurance policy, and I can't believe how high the premiums have gotten. I'm not taking on any new clients with legal malpractice cases." The man tried to contact several other lawyers, each of whom indicated that he or she would be happy to accept the representation but was too busy to take on any new matters at this time. Six months later the statute of limitations expired without the man filing his lawsuit. If the man can establish that a legal malpractice action against the divorce lawyer would have succeeded, is the attorney subject to civil liability for refusing to accept the representation?
- A.
Yes, because the attorney did not have good cause to refuse the representation.
- B.
Yes, unless the attorney made reasonable efforts to find a competent lawyer to represent the man.
- C.
No, unless the attorney holds herself out as experienced in legal malpractice cases.
- D.
No, because the attorney had no legal obligation to accept the man's case.
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