1. Start of the Lawyer-Client Relationship Flashcards
General Rule: When Does the Relationship Form?
A lawyer-client relationship forms when the client reasonably believes it does, absent specific or explicit statement otherwise from the lawyer. When a LCR forms, the lawyer is bound by all professional duties.
General Rule: What is a “Quasi” Lawyer-Client Relationship.
A QLCR forms when a lawyers words or conduct lead a client to reasonably believe it has, irrelevant of any retainer or mutual consent. Any ambiguity is resolved in favor of the client.
General Rule: Decision Making
Lawyers owe duties of competence and care to their clients, which entails duties of diligence and communication, and a duty to render competent legal services.
The scope of the representation permits a lawyer to determine the “means” or strategy, while the client choses the “ends” or objectives.
Whilst a lawyer holds implied authorization to take reasonable steps to advance the representation, and will ultimately determine the means used, they must still reasonably consult with the client about such matters.
What are examples of “means” decisions that a lawyer may make?
- Procedural decisions (when to schedule depositions)
- Tactical trial decisions (which witnesses to call, waive civil jury trial, x-exam a witness, how to frame an opening argument) - BUT must not impair client’s substantive interests
- Issues to raise on appeal.
General Rule: Duty to Communicate - besides decisions/means, what else is required?
Promptly inform of
- any matter requiring disclosure or client consent for compliance with ethical rules (conflicts, confi)
- significant developments
- alert client if rules prohibit compliance with instructions
- all matters requiring explanation to enable client to make informed decisions (under federal rules), including all terms of proposed plea deals or settlement offers (under CA rules)
General Rules: Decision Making / Counsel on Crimes, Fraud & Rule Violations
A lawyer may represent a client and counsel as to past wrong-doings, but may not counsel them to engage in OR assist a client in conduct they know is:
- criminal
- fraudulent
- violates court order or
- under CA rules, would violate CA rules of professional conduct
General Rule: Mandatory & Permissive Withdrawal (+ duty to reject)
Mandatory: Cold Monkeys Might Pinch
(1) Continuing rep WILL result in violation of law or CA rules, lawyer knows/reasonably should know (CA) [+DUTY TO REJECT]
vs. if client HAS used services for crime/fraud or insists lawyer engage in unlawful conduct = permissive withdraw
(2) CA: malicious claim without probable cause to harass or injure someone (DUTY TO REJECT)
vs. frivolous claim = permissive withdraw (DUTY TO REJECT)
(3) Mental or Physical condition makes unreasonably difficult (DUTY TO REJECT)
vs. unreasonable financial burden = permissive - NOT IN CA
Also: court order or client fires.
General Rule: Duty to Accept
Generally, there is no duty to accept a representation. Exception is if court appointment. Exception to exception is for good cause (lawyer not competent, conflicted out or would cause undue financial burden)
Bonus Points: 50-hour pro bono encouraged for indignant clients under model rules - NOT IN CA (just encourages pro bono)
When do the rules apply (when you are providing what kind of services?)
“Law related services in circumstances that are not distinct from the provision of legal services.” But if you make clear you are performing other services that’s okay (under federal rules) and duties won’t apply.
Not the case in CA. If it’s a mix or legal/non-legal, rules always apply.
When you sell a law practice, what must you do?
Give clients proper notice + fees can’t increase. Can be partial sale, but if full you need to stop practicing law.
In CA: all or nothing, can only sell full, but can practice elsewhere afterwards.
When is law practice “unauthorized”
Must be admitted to practice
Unlicensed practice prohibited - violation of rules + misdemeanor
Temporary practice okay in some circumstances (if in good standing)
Can’t assist non-lawyer (paralegal) in unlicensed practice - don’t let them give legal advice
