Legal Representation(redirected from Duties and Obligations)
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The legal work that a licensed attorney performs on behalf of a client.
Licensed attorneys have the authority to represent persons in court proceedings and in other legal matters. When hiring an attorney, a careful consumer considers a number of variables, including the nature and importance of the case, the attorney's fee and payment arrangement, personal chemistry with the attorney, and the attorney's reputation.
If a case is simple, a person may wish to represent himself, or proceed pro se. The courts usually discourage self-representation because legal practice requires special skills, and an unschooled pro se party is usually at a disadvantage in court. Even attorneys are well advised to hire another attorney for personal legal problems.
Many attorneys advertise their services. Attorneys must obey all applicable advertising laws and must follow rules of professional conduct related to advertising. Under these rules they may not make false or misleading claims, create unjustified expectations, or compare the services of another attorney unless the comparison can be factually substantiated. An attorney may not make in-person or live telephone solicitations unless the attorney is related to the person or has a professional relationship with the person. An attorney may not contact an individual after he or she indicates a desire that the solicitations cease, and an attorney may not coerce or harass prospective clients. Aside from these and similar restrictions, attorneys generally are free to use the various media to promote their services.
Duties and Obligations
Legal representation places duties on both the client and the attorney. The client should provide the attorney with all information relevant to the case and keep the attorney apprised of new information. The client should be completely honest about the case with the attorney. The client also should follow the attorney's directives.
The client has an obligation to pay the attorney for the representation. If the client does not make timely payment, the attorney may decline to perform further work for the client. An attorney also may discontinue representation if the client wants the attorney to perform an unethical or illegal act, the client lies and refuses to correct the lie, the client makes representation unreasonably difficult, or the attorney discovers a conflict of interest.
Generally, a conflict of interest is any circumstance that adversely affects a client, or limits the loyalty of the attorney to a client. For example, assume that an attorney regularly represents a corporation. A new client seeks the attorney's representation in a suit against the same corporation. Representing the new client would be a conflict of interest. Generally, the attorney would not be able to take the case or continue representation after the conflict was discovered. However, the attorney may continue representation if he does not believe that the conflict would adversely affect the relationship with the corporation, and if both the corporation and the client agree to the attorney's representation. In practice, continued representation where there is a conflict of interest is rare.
If an attorney must withdraw from representation, he must act to protect the interests of the client. This may involve helping the client find another attorney, postponing court dates, and surrendering papers and documents relevant to the case. The attorney must return to the client any money owed to the client under the fee agreement.
An attorney has many obligations to his or her client. He must zealously defend the interests of the client and respond to the client's concerns. He must communicate with the client, keeping the client informed about the status of the case and explaining developments so that the client can make informed tactical decisions. He must abide by the client's decisions regarding the objectives of the representation. With few exceptions an attorney may not divulge client communications to outside parties without the client's consent.
Attorneys are officers of the court, and as such they must follow the law and obey ethical constraints. They may not harass persons in the course of representation. They may not assist a client who they know will not tell the truth about the case. An attorney should not begin a romantic affair with the client during the course of legal representation. In most states such behavior is an ethical violation. No attorney in any state may perform legal services in exchange for sexual relations.
Attorneys' fees vary by attorney and by case. An attorney may charge a client in several different ways. The most common forms of billing include flat fees, hourly rates, contingent fees, and retainers.
Hiring an Attorney
The first task in hiring an attorney is to find one who can manage the particular legal problem at issue. All attorneys are not equally skilled in every area of the law. Like many other professionals, attorneys tend to specialize in certain areas of practice such as contracts, Patents, family matters, taxes, personal injuries, criminal matters, and business matters. A person facing criminal charges, for example, will want to contact an attorney who specializes in criminal defense work, not a patent attorney.
Some attorneys are known for their skill in certain types of cases within a specialty. For example, a criminal defense attorney may be competent to handle any criminal case, but may be especially proficient in drunk driving cases or Homicide cases. Attorneys who specialize in certain types of cases often have developed a network of helpful contacts and have a great deal of experience with the kinds of issues involved in these cases.
Some attorneys are general practitioners, proficient in a broad range of legal topics. These attorneys are generally less expensive than specialists. However, if a general practitioner is not competent in a particular area, she may need to put more time and effort into the case than would a specialist, and the client will have to pay for this extra work.
Many businesses specialize in making attorney referrals at no charge to the consumer. They offer lists of attorneys categorized by area of expertise or type of client. For example, some referral services list attorneys who specialize in representing persons of color, women, or gay men and lesbians.
After obtaining a list of qualified attorneys, the consumer should have an initial consultation with several attorneys if possible. Some attorneys offer such a consultation at no cost, whereas others may charge a nominal fee. In either case the initial consultation does not obligate the consumer to hire that attorney or firm.
At the initial consultation, the potential client should provide the attorney with as much information as possible about the case. Relevant information may include pictures, witness statements, and other documents. This information helps the attorney make an informed judgment about the case.
The attorney generally does not give legal advice at the initial consultation. Instead, the attorney will ask questions to determine whether he is able to represent the consumer. The attorney will not begin to work on the case until a fee arrangement has been reached with the consumer.
In deciding whether to retain a particular attorney, the consumer should look at a number of issues. If money is a consideration, the consumer should weigh the attorney's fee against the importance of the case. For example, the consumer may be willing to spend more money on an attorney if facing criminal charges than if involved in a minor civil matter.
If the consumer and the attorney will need to meet frequently during the representation, the consumer should consider the location of the attorney's office and required travel time.
Another consideration is personal chemistry. Attorneys and clients do not have to be friends, but they should have some rapport so that they can work together. If the consumer does not feel comfortable with an attorney, she should find another attorney.
If time is a consideration, the consumer should ask how long the attorney expects the case to last. Some attorneys work more quickly than others.
A consumer should also consider the reputation of the attorney. Attorneys usually are willing to provide a list of previous clients as references. All states have a Professional Responsibility board that oversees the conduct of attorneys in the state. These boards may be able to give consumers information regarding ethical violations by attorneys. The consumer also may want to ask if an attorney has Malpractice insurance, which compensates clients who are victims of incompetent legal work.
A flat fee is a dollar amount agreed to by the attorney and the client before the attorney begins work on the case. The flat fee is favored by many attorneys because it is a simple transaction and because the attorney is paid at the beginning of the representation. The attorney identifies the amount of work that the case will require and calculates a reasonable fee based on the time and effort involved. If the attorney spends less time on the matter than anticipated, the attorney may keep the excess payment, unless the attorney and client agree otherwise. Conversely, the attorney who charges a flat fee may not later demand more money if the case requires more time and effort than originally anticipated.An hourly rate is a predetermined amount charged for each hour of the attorney's work. The attorney and client may agree that hourly fees are to be paid periodically, or in one lump sum at the end of the case. The time that an attorney charges for legal work is called billable time, or billable hours. Hourly rates vary according to the attorney's expertise and experience. Some critics have argued that hourly rates discourage quick work and expedited resolutions. Before agreeing to an hourly rate, prospective clients should ask for a written estimate of the number of billable hours that the attorney anticipates will be necessary to complete the matter.
A Contingent Fee is a percentage of the amount recovered by the client. A contingent fee is not paid by the client until the client wins money damages from a defendant. Attorneys offer such a fee if the client stands a good chance of winning a sizable cash settlement or judgment. Contingent fees cannot be used in Divorce cases, Child Custody cases, and criminal cases.
Contingent fees are a gamble for the attorney. If the client does not win the case or wins less money than anticipated, the attorney may work for no or little pay. Common contingent fees range from 20 to 40 percent of the client's recovery. For personal injury and Medical Malpractice cases, laws in all states limit the percentage that an attorney may receive from a client's recovery. For other cases the percentage is negotiable between the client and attorney.
A client may retain an attorney for a specific period of time rather than for a specific project. In return for regular payment, the attorney agrees to be on call to handle the day-to-day legal affairs of the client. Most individuals do not have enough legal matters to keep an attorney on retainer.
The term retainer also refers to an initial fee paid by the client. Retainers often are used by attorneys who charge an hourly rate, and some attorneys add an initial retainer to a contingent fee.
Pro Bono Services
The term pro bono means "for the good." In practice Pro Bono describes legal work performed free of charge. Pro bono work is not required of attorneys in most jurisdictions, but courts occasionally appoint attorneys to represent an indigent client free of charge. Under Rule 6.2 of the American Bar Association's Model Rules of Professional Conduct, a lawyer may refuse an appointment, but only if: (1) the appointment would somehow violate another rule of conduct (such as conflicts of interest) or law; (2) the appointment would unreasonably burden the lawyer; or (3) the lawyer finds the appointment so repugnant that he would not be able to effectively represent the client. Attorneys often perform pro bono work in order to contribute to their community and create goodwill for the firm.
Public Legal Services
Legal services organizations exist in all states to provide free or low-cost legal services to qualified persons. Legal services offices are funded by a variety of sources, including private businesses, private individuals, the interests from lawyer trust accounts, and federal, state, and local governments. Civil matters such as bankruptcies, divorces, and landlord-tenant disputes are handled by legal aid agencies. Criminal matters are handled by state public defenders.
Private Legal Services
Some organizations sell "legal insurance" for a fee. Legal insurance is a form of prepaid legal service in which the consumer pays a premium to cover future legal needs. Such a service may be offered through labor unions, employers, or other private businesses. Most legal insurance policies do not cover all types of legal matters, and the policyholder may not be entitled to choose his lawyer. The consumer should determine the scope and nature of the legal representation offered in legal insurance packages.
If a client does not believe he or she has received competent legal representation, the client has several options. In a criminal case, if a convicted defendant believes he received incompetent representation, the defendant can address the issue on appeal, and the appellate court may reverse the verdict. If a client believes that an attorney has committed misconduct, the client may contact the board of Professional Responsibility in the state in which the attorney practices. If an attorney is found to have violated the law or the applicable professional conduct code, the attorney is subject to discipline by the board. Discipline can range from a reprimand to revocation of the attorney's license.
In some states if an attorney and client have a dispute over fees, the attorney may place a lien on the client's money or Personal Property. There are two types of attorney liens: a retaining lien and a charging lien. A retaining lien gives the attorney the right to retain money or property belonging to the client until the client pays the bill. The attorney does not have to go to court to do this, but the judge may order a hearing at the request of the client to determine whether the attorney has good reason to keep the money or property.
A charging lien gives an attorney the right to be paid from the proceeds of a lawsuit. For example, if an attorney charges a client a contingency fee and the attorney wins a large monetary award for the client, the attorney is entitled to a predetermined share of the award. Generally, the attorney may keep a certain amount for services rendered even if he was fired by the client. However, if a court finds that the client properly fired the attorney for misconduct, the attorney may not be entitled to any portion of the client's award.
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Editors of Court TV and The American Lawyer. 1995. The Court TV Cradle-to-Grave Legal Survival Guide. 1st ed. Boston: Little, Brown.
Latto, Lawrence J. 1998. "The Restatement of the Law Governing Lawyers: A View from the Trenches." Hofstra Law Review 26.
McKay, John. 2000. "Federally Funded Legal Services: a New Vision of Equal Justice Under Law." Tennessee Law Review 68 (fall): 101–18.
Morgan, Thomas D., and Ronald D. Rotunda. 1993. 1993 Selected Standards on Professional Responsibility. Westbury, N.Y.: Foundation Press.
Peters, Jean Koh. 2001. Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions. 2d ed. Newark, N.J.: LexisNexis
Rotunda, Ronald D. 2002. Professional Responsibility. 6th ed. St. Paul, Minn.: West.
Watson, Sidney D., ed. 2001. Representing the Poor and Homeless: Innovations in Advocacy. Washington, D.C.: American Bar Association, Commission on Homelessness & Poverty.
Attorney-Client Privilege; Attorney Misconduct; Attorney's Lien; Client Security Funds; Ethics, Legal; Legal Advertising; Legal Malpractice; Practice of Law; Professional Responsibility; Right to Counsel.