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Terms in this set (20)

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?
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 of 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 changes 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?
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 record-keeping. The attorney does not discuss all of these details with the client, though, because the client said at the outset that he trusted his attorney's judgment, and 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?
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% if the case was settled before trial, 30% if they went to trial and won, and 35% if the case went up on appeal and they prevailed in the appellate stage. In addition, the agreement specified that the contingent fee would come from total award before court costs and other expenses, and 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 the general firm operating budget from which the partnership paid the salaries of non-lawyer staff, such as paralegals and secretaries. The attorney obtained a favorable settlement before trial. He telephoned Client with the good news, and explained that he would deduct his 25% 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% 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?
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% 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 attorney's 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?