II. The Client-lawyer Relationship
Quiz for Section II: The Client-Lawyer Relationship
Questions and Answers
- 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.
Correct Answer
B. Yes, because Attorney may refer to both legal and nonlegal considerations in advising a client.Explanation
In representing a client, lawyer must exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but also to other considerations such as moral, economic, social, and political factors that may be relevant to the client?s situation [MR 2.1, cmt. [2]].In this case, Attorney?s legal advice referred to legal and business interests of Landlord and, as such, there is nothing improper about Attorney?s conduct.Rate this question:
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- 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
Correct Answer
B. I and II, but not IIIExplanation
I and II are allowed because a lawyer may collect a fee through a credit card or by arranging a bank loan for a client. III is not allowed because a lawyer may not obtain or negotiate literary or media rights to a portrayal or account regarding a pending representation prior to the conclusion of the representation [MR 1.8(d)].Rate this question:
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- 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
Correct Answer
B. I and II, but not IIIExplanation
"If the lawyer is not competent to handle the representation, she may: (1) decline or withdraw from representation, (2) take action to make herself competent to handle the representation, or (3) associate with competent counsel. The client's consent to representation when an attorney is not competent does not release the attorney from the duty of competence [MR 1.1]. Even if there is good cause to terminate a representation, the lawyer may have to continue representing a client if ordered to do so by a court [MR 1.16(c)]. I is correct because incompetence is good cause for Attorney to request permission of the court to withdraw.II is correct because if Attorney is not competent, Attorney may associate with competent counsel. III is incorrect, however, because Deft's consent to Attorney representing Deft to the best of Attorney's abilities does not release Attorney from the duty of competence.
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- 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
Correct Answer
A. I onlyExplanation
Under MR 1.16(b), withdrawal is permitted if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client, (2) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services (e.g. payment of fees), and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, (3) the representation will result in an unreasonable financial burden on the lawyer, or has been rendered unreasonably difficult by the client, or (4) other good cause for withdrawal exists. Even if there is good cause to terminate a representation, the lawyer may have to continue representing a client if ordered to do so by a court [MR 1.16(c)]. The court's approval or notice will likely be required if the lawyer is representing the client in pending litigation.Here, Attorney represents Client in a pending contract suit. Though, non–payment of bills may be good cause to withdraw, Attorney may need to give notice to Client that Attorney will obtain an order from the court to withdraw.Rate this question:
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- 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.
Correct Answer
C. No, if the division of the fee between AlpHa and Beta is in proportion to actual work done by each.Explanation
"Under MR 1.5(e), a fee can be divided between lawyers who are not in the same firm if, the: (1) division is in proportion to the services performed by each lawyer, (2) client agrees to the arrangement in writing, and (3) total fee is reasonable. Here, two lawyers, Alpha and Beta, of different law firms, arranged to divide fees, with Client?s written consent. If the total fee is reasonable and the division of fee between Alpha and Beta is in proportion to actual work done by each, Alpha and Beta are not subject to discipline.
"Rate this question:
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- 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.
Correct Answer
B. Yes, because AlpHa neglected the representation of Passenger.Explanation
"A lawyer must act with reasonable diligence and promptness in representing a client [MR 1.3]. Under MR 1.3, comments 2–4, a lawyer should especially attend to: (1) controlling workload, (2) avoiding unreasonable delay and procrastination, (3) filing within the statute of limitations, and (4) carrying representation through to completion and ensuring clients know when representation ends. Under MR 1.4(a), in communicating with clients, lawyers must keep the client reasonably informed about the status of the matter, and promptly comply with reasonable requests for information. Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation [MR 1.1]. Here, Alpha put off talking to the bus company's lawyer, and did not communicate with Passenger on the status of the case. After ten months passed and the statute of limitations risked running, Passenger had to find another attorney, Beta, to file the suit.
"Rate this question:
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- 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
Correct Answer
D. I, II, and IIIExplanation
To protect the integrity of the judiciary, a lawyer is specifically prohibited from making a statement s/he knows to be false, or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or candidate for appointment to judicial or legal office [MR 8.2(a)]. A lawyer may not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial office [MR 8.2]. A lawyer's assessment of judges and judicial candidates is relied on in evaluating such persons' professional or personal fitness for judicial or legal office. A false statement or opinion that is not candid can unfairly undermine public confidence in the administration of justice [MR 8.2, cmt. [1]]. Under MR 8.4, it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. A judge or judicial candidate may not personally solicit or accept campaign contributions other than through a campaign committee as authorized under CJC 4.4. I is proper because the activities are not prejudicial to the administration of justice. II is proper because soliciting funds for Beta?s campaign is not prejudicial to the administration of justice. Beta may accept contributions through a campaign committee. III is proper because Alpha may publicly oppose Delta's candidacy as long as Alpha does not make any statement Alpha knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of Delta.Rate this question:
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- 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.
Correct Answer
C. No, unless Prosecutor has knowledge that Attorney's refusal to plea bargain was due to personal motives.Explanation
"The client has the ultimate authority to determine the purposes or objectives to be served by the representation. The objectives may include whether to enter a plea in a criminal case, after consulting with the lawyer [MR 1.2(a)]. The lawyer ordinarily has the right to determine the technical and legal tactical means by which the client?s objectives will be pursued, but has the obligation to consult with the client concerning those means [MR 1.2, cmt. [2]]. A lawyer who has knowledge of a violation of the Rules that raises a question as to any lawyer's honesty, trustworthiness, or fitness as a lawyer must inform the appropriate professional authority [MR 8.3(a)]. Here, if Attorney refused to plea bargain because of personal motives, it would raise a question as to Attorney's honesty, trustworthiness or fitness as a lawyer. As such, if Prosecutor has knowledge that Attorney's refusal to plea bargain was due to personal motives, Prosecutor must report it to the disciplinary authority under MR 8.3(a).
"Rate this question:
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- 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.
Correct Answer
C. No, unless granting the extension would prejudice Plaintiff's rights.Explanation
"The lawyer ordinarily has the right to determine the technical and legal tactical means by which the objectives of the client will be pursued, but the lawyer has the obligation to consult with the client concerning the means [MR 1.2, cmt. [2]]. A lawyer is not bound to press for every advantage that might be realized for a client and has discretion regarding the means by which a matter should be pursued [MR 1.3, cmt. [1]]. A lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the client [MR 1.3, cmt. [3]]. Here, Alpha may grant the extension out of professional courtesy as long as it does not prejudice Plaintiff's rights. Alpha does not need to insist on everything technically as instructed by Plaintiff because Alpha has discretion on the means to accomplish Plaintiff's objectives.
"Rate this question:
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- 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.
Correct Answer
C. No, because Attorney did not violate any duty owed to Baker.Explanation
"Lawyers in the United States are generally free to refuse service to any person for any reason. MR 1.18 details duties to prospective clients. In this case, Attorney talked to Baker, a prospective client, declined the representation, gave Baker another lawyer?s name, and urged him to contact that lawyer on a timely basis. Attorney did not owe Baker any other duty.
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- 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.
Correct Answer
C. No, because Plaintiff was not advised of the association of Beta.Explanation
If the lawyer is not competent to handle the representation, she may associate with competent counsel. Under MR 1.5(e), a fee can be divided between lawyers who are not in the same firm if, the: (1) division is in proportion to the services performed by each lawyer, (2) client agrees to the arrangement in writing, and (3) total fee is reasonable. Here, two lawyers, Alpha and Beta, of different law firms, arranged to divide fees, without Plaintiff?s written consent.Rate this question:
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- 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.
Correct Answer
A. Yes, unless Client will be prejudiced by the delay.Explanation
A lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the client [MR 1.3, cmt. [3]]. The lawyer ordinarily has the right to determine the technical and legal tactical means by which the objectives of the client representation will be pursued, but she has the obligation to consult with the client concerning those means [MR 1.2, cmt. [2]]. Here, Attorney has discretion to agree to the December trial date because the decision relates to a technical and legal tactic. Client also informed Attorney of availability in December. As such, as long as Client is not prejudiced by the delay, Attorney does not need Client?s consent.Rate this question:
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- 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.
Correct Answer
C. No, because Attorney is not counseling Client to avoid arrest and prosecution.Explanation
"Under MR 1.2(d), a lawyer may not knowingly counsel or assist a client in illegal conduct. In this case, however, Attorney has not assisted in Client's illegal conduct as Attorney has not advised Client on how to avoid arrest/prosecution and the Attorney does not know where Client is hiding.
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- 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.
Correct Answer
A. Yes, because Attorney agreed to a fee contingent on the outcome of a criminal case.Explanation
"MR 1.5(d)(2) provides a lawyer may not represent a defendant in a criminal case on a contingent fee basis. In this case, Deft's payment of a fee (title to an automobile) was contingent on a successful outcome in the criminal case.
"Rate this question:
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- 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.
Correct Answer
C. No, because the funds will be used for trial preparation.Explanation
"A lawyer may collect a fee through a credit card or by arranging a bank loan for a client. The lawyer may take an interest-bearing promissory note for a fee. A contingent fee requires the client to pay a fee (or a bonus) only if there is a favorable outcome [MR 1.5(c)]. A lawyer may accept a contingency fee except in criminal cases when representing a defendant, or in domestic relations cases [MR 1.5(d)]. A lawyer may advance court costs and other expenses of litigation, the repayment of which may be contingent on the outcome of the matter [MR 1.8(e)(1)]. Under such an arrangement, if the client does not prevail in the case, the lawyer absorbs the costs and expenses. Here, Attorney can represent Client in a personal injury case on a contingent fee basis according to MR 1.5(d). Attorney may also arrange for a bank loan to advance the expenses for trial preparation, so Attorney is not subject to discipline if she guarantees Client?s promissory note.
"Rate this question:
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- 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.
Correct Answer
C. No, because the proposed settlement would restrict AlpHa's right to represent Wife in the future.Explanation
"A lawyer is prohibited from making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy [MR 5.6(b)]. In this case, the proposed settlement is not proper because it restricts Alpha's right to represent Wife in the future.
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- 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.
Correct Answer
B. Yes, because Client did not consent to the increase.Explanation
A lawyer must promptly communicate any fee changes to the client [MR 1.5(b)]. Able & Baker increased the hourly rates without telling Client about the changes. Though the new rates were reflected in the invoices, Able & Baker needed to promptly communicate the changes to Client.Rate this question:
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- 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.
Correct Answer
D. No, because the fee is contingent.Explanation
"A contingent fee requires the client to pay a fee (or a bonus) only if there is a favorable outcome [MR 1.5(c)]. A lawyer may accept a contingency fee except in criminal cases when representing a defendant, or in domestic relations cases [MR 1.5(d)]. Here, Attorney's retainer contract for a divorce case, a matter of domestic relations, requires a client to pay only if Attorney secures alimony or property in a settlement. The contract involves a contingent fee. The contract provides for payment of a one-third fee based on the amount of alimony or property settlement.
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- 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.
Correct Answer
B. Yes, because Client's conduct makes it unreasonably difficult for Attorney to represent Client effectively and competently.Explanation
A lawyer is permitted to withdraw from representing a client under MR 1.16(b) if the client insists upon taking action the lawyer considers repugnant or with which the lawyer fundamentally disagrees. Here, Attorney may ask the court for withdrawal because Client complained bitterly about the time and expense involved and insisted Attorney take steps to terminate pretrial proceedings when Attorney believes to do so would jeopardize Client's interests and so informed Client. Attorney believes the case cannot be adequately prepared for trial without further pretrial proceedings.Rate this question:
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- 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.
Correct Answer
A. Yes, because Attorney neglected Plaintiff's cause.Explanation
A lawyer must act with reasonable diligence and promptness in representing a client [MR 1.3]. Under MR 1.3, cmts. [2-4], a lawyer should especially attend to: (1) controlling workload, (2) avoiding unreasonable delay and procrastination, (3) filing within the statute of limitations, and (4) carrying representation through to completion and ensuring clients know when representation ends. A lawyer may terminate a client representation under MR 1.16(b) when a client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services (e.g. payment of fees) and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. The court's approval or notice will likely be required if the lawyer is representing the client in pending litigation. Upon terminating representation, the lawyer must take steps to protect the client's interests. The lawyer must give the client reasonable time and notice to retain other counsel. Here, Attorney may withdraw for Plaintiff's refusal to pay, but must seek permission of the tribunal to do so because there is pending litigation. Attorney is permitted to withdraw if Plaintiff has adequate time to find another lawyer to prepare for, and represent Plaintiff in, the litigation.Rate this question:
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- 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.
Correct Answer
D. No, because Attorney may contract with Client for a reasonable contingent fee.Explanation
A contingent fee requires the client to pay a fee (or a bonus) only if there is a favorable outcome [MR 1.5(c)]. A lawyer may accept a contingency fee except in criminal cases when representing a defendant, or in domestic relations cases [MR 1.5(d)]. Here, Client proposed 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. This was a contingent fee Attorney could properly accept under MR 1.5.Rate this question:
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- 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.
Correct Answer
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.Explanation
A lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client, (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, (3) the client has used the lawyer's services to perpetrate a crime or fraud, (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement, (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client, or (7) other good cause for withdrawal exists [MR 1.16(b)]. Here, 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. Corp's Board disagreed there was any material misstatement and directed Attorney to proceed with the filing. Attorney may withdraw under MR 1.16(b) because Corp?s Board persists in a course of action involving Attorney's services that Attorney reasonably believes is criminal or fraudulentRate this question:
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- 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.
Correct Answer
C. No, because a client's failure to pay fees when due may be insufficient in itself to justify withdrawal.Explanation
Under MR 1.17(b), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client, (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, (3) the client has used the lawyer's services to perpetrate a crime or fraud, (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement, (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client, or (7) other good cause for withdrawal exists. The court's approval or notice will likely be required if a lawyer is representing a client in pending litigation. Even if there is good cause to terminate a representation, the lawyer may have to continue representing a client if ordered to do so by a court [MR 1.16(c)]. Here, it is not proper for Attorney to use the stipulation because even if a client does not pay fees when due, a court may not approve withdrawal if a client does not have adequate time to find another lawyer when there is pending litigation.Rate this question:
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- 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.
Correct Answer
D. No, because the attorney had no legal obligation to accept the man's case.Explanation
Lawyers in the United States are generally free to refuse service to any person for any reason. The attorney had no legal obligation to accept the man's case.Rate this question:
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Mar 20, 2023Quiz Edited by
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Mar 25, 2014Quiz Created by
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