MPRE Fees and Expenses 4 — Questions and Answers
Question 1: An attorney bills a client for time spent traveling to a deposition during which the attorney also worked on another client's matter. Under the Model Rules, the proper billing approach is:
- Bill the full travel time to the first client and none to the second.
- Bill the full travel time to both clients.
- Bill only the portion of travel time fairly allocable to each client's work. (Correct answer)
- Bill travel time only if the fee agreement expressly permits it.
Correct answer: Bill only the portion of travel time fairly allocable to each client's work.
Double-billing is improper; when time is spent on multiple clients simultaneously, each client may be charged only a fair share of that time.
Question 2: A lawyer is discharged by a client before completing a matter handled on an hourly basis. The client refuses to pay any fees. Under the Model Rules, the lawyer:
- Has no right to any fee because the representation was not completed.
- May recover the reasonable value of services rendered even without a written agreement. (Correct answer)
- May sue for the full fee under the contract regardless of work done.
- Must waive all fees to avoid a conflict with the duty of loyalty.
Correct answer: May recover the reasonable value of services rendered even without a written agreement.
A lawyer discharged without cause is generally entitled to the reasonable value of services rendered (quantum meruit), even if the fee agreement is unenforceable.
Question 3: A client asks the lawyer to advance court filing fees and expert witness costs during litigation. Under the Model Rules, a lawyer:
- May never advance litigation expenses to a client.
- May advance litigation expenses, with repayment contingent on the outcome of the matter. (Correct answer)
- May advance litigation expenses only in contingency fee cases.
- May advance expenses only with prior court approval.
Correct answer: May advance litigation expenses, with repayment contingent on the outcome of the matter.
Rule 1.8(e) permits lawyers to advance litigation costs, with repayment contingent on the outcome, to prevent financial hardship from limiting access to representation.
Question 4: A lawyer representing an indigent client in a civil rights matter may pay the client's living expenses during the litigation under the Model Rules:
- Yes, because Rule 1.8(e) allows payment of all client expenses.
- No, because Rule 1.8(e) limits lawyers to advancing court costs and litigation expenses only. (Correct answer)
- Yes, but only if the client agrees to repay the expenses from any recovery.
- No, unless a court grants permission.
Correct answer: No, because Rule 1.8(e) limits lawyers to advancing court costs and litigation expenses only.
Rule 1.8(e) only authorizes advancing court costs and litigation expenses, not living expenses or personal financial support.
Question 5: A lawyer who has not been paid by a client wants to assert a lien on documents the client needs for an upcoming hearing. Under the Model Rules, asserting a retaining lien:
- Is always permissible because lawyers have a right to be paid.
- May be improper if it will seriously prejudice the client. (Correct answer)
- Is permissible only in jurisdictions that recognize retaining liens by statute.
- Is expressly prohibited by the Model Rules.
Correct answer: May be improper if it will seriously prejudice the client.
While the Model Rules do not expressly prohibit liens, withholding client property that causes serious prejudice to the client is generally improper under Rule 1.16(d).
Question 6: An attorney charges a new client a $5,000 nonrefundable retainer described as compensation for 'availability.' Under the Model Rules, this arrangement is:
- Always permissible as a true retainer for availability.
- Permissible if the client signs a written agreement acknowledging it is nonrefundable.
- Impermissible because all advance fees must be deposited in trust and are refundable if unearned. (Correct answer)
- Permissible only for existing clients with whom the lawyer has an established relationship.
Correct answer: Impermissible because all advance fees must be deposited in trust and are refundable if unearned.
Most jurisdictions following the Model Rules treat advance fees as client funds held in trust; labeling a fee 'nonrefundable' does not override the obligation to return unearned funds.
Question 7: A client agrees in the fee arrangement to pay the attorney's fee and also to pay any sanctions the court imposes on the lawyer for discovery violations. Under the Model Rules, this indemnification clause is:
- Permissible because clients may agree to any terms they wish.
- Permissible if the client had independent counsel review the agreement.
- Impermissible because it attempts to circumvent the deterrent effect of sanctions on the lawyer. (Correct answer)
- Impermissible unless approved by the court.
Correct answer: Impermissible because it attempts to circumvent the deterrent effect of sanctions on the lawyer.
Indemnification agreements that shift sanctions from the lawyer to the client undermine the deterrent purpose of court sanctions and are improper under professional conduct rules.
MPRE Fees and Expenses 4
An attorney bills a client for time spent traveling to a deposition during which the attorney also worked on another client's matter.
Under the Model Rules, the proper billing approach is: