A-C Relationship

Question 1

strickland doctrine for lawyer error in crim case

Answer 1

 Strickland doctrine – competent representation in the criminal law context (to survive an “ineffective assistance of counsel” claim under the 6th Am):
• (1) lawyer’s errors must be so serious that counsel was not functioning as “counsel” guaranteed by the 6th Am, and
• (2) defendant must show reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceedings would have been different
• **conviction should not be reversed unless defendant can prove that the error actually affected the outcome

Question 2

R1.4 5 key points for duty of communication

Answer 2

o (a) a lawyer shall:
 (1) promptly inform the client of any decision/circumstance where client’s informed consent is required
• **attny must consult with the client prior to taking action unless prior discussions have resolved what action the client wants the lawyer to take (see R1.2(a))
 (2) reasonably consult with client about the means by which the client’s objectives are to be accomplished
• subject to exigent circumstances, attny should consult first and act second
 (3) keep the client reasonably informed as to the status of the matter
 (4) promptly comply with reasonable requests for info
 (5) consult w the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by these rules/other law

Question 3

what is a prospective client

Answer 3

o (a) “prospective client” defined: a person who consults w a lawyer about the possibility of forming an A-C relationship with respect to a matter

Question 4

R1.2 allocation of authority - objectives and means

Answer 4

a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued

Question 5

R1.2 authorization without further consultation

Answer 5

• a client may authorize the attny to take specific action on his behalf without further consultation (this can even include settling/pleading) – absent a material change of circumstances (and subject to R1.4), an attny may rely on such authorization
o **client can revoke at any time

Question 6

R1.2 can you limit the scope of your rep? what is required?

Answer 6

c) a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent
 lawyer can agree to a higher or lower contracted standard than required by the ethics rules, but you can’t contract to waive your duty of competent rep or avoid malpractice

Question 7

R1.14 duty (and exception) toward client w diminished capacity

Answer 7

a) rule: when a client’s capacity to make adequately considered decisions in connection w rep is diminished (whether because of minority/mental impairment/etc.), the lawyer shall, as far as reasonably possible, maintain a normal A-C relationship w the client
 the fact that a client suffers a disability does not diminish the attny’s obligation to treat the client w attention and respect – must continue to maintain communication

o (b) exception (last resort): when the lawyer reasonably believes
 that the client has diminished capacity,
 is at risk of substantial physical, financial or other harm unless action is taken, and
 cannot adequately act in the client’s own interest…
 the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian

Question 8

R1.16 when is declining/terming rep required? (3 circs)

Answer 8

o (a) except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
 (1) the representation will result in violation of the rules of professional conduct or other law;
• **ex) when a lawyer must choose btw duty of confidentiality to one client and duty of communication with another, he must w/d, but not necessarily from both
 (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; OR
 (3) the lawyer is discharged

Question 9

R1.16 when is withdrawal permissive? (7 scenarios)

Answer 9

 (1) withdrawal can be accomplished without material adverse effect on the interests of the client;
• **there is no “for cause” requirement
 (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
• (I’m assuming if you know it’s criminal/fraudulent, you must w/d)
 (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
• **so the rule is super broad and gives attny wide discretion

Question 10

rule regarding comms with persons repped by counsel

Answer 10

o rule: in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order

 applies to comms with any person (not just parties)
 **applies even though the represented person initiates or consents to the communication
• a lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule
 does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation
 nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter
 a lawyer may not make a communication prohibited by this Rule through the acts of another (see Rule 8.4(a))
 parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make

Question 11

rule for dealing with unrepped person

Answer 11

o in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested
o when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding

Question 12

rule and 3 exceptions for accepting appointments

Answer 12

o rule: a lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
 (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
 (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
 (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

Question 13

advertising rule

Answer 13

o (a) A lawyer may communicate information regarding the lawyer’s services through any media
o (b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:
 (1) pay the reasonable costs of advertisements or communications permitted by this Rule;
 (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
• this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service (qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public)
 (3) pay for a law practice in accordance with Rule 1.17;
 (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:
• (i) the reciprocal referral agreement is not exclusive; and
• (ii) the client is informed of the existence and nature of the agreement; and
 (5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services

Question 14

define legal service plan; referral service; qualified referral service

Answer 14

• legal service plan: a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation
• lawyer referral service: any organization that holds itself out to the public as a lawyer referral service
• qualified referral services: consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements

Question 15

rule regarding saying you are a specialist

Answer 15

 note: a lawyer is generally permitted to state that the lawyer “concentrates in” or is a “specialist,” practices a “specialty,” or “specializes in” particular fields based on the lawyer’s experience, specialized training or education, but such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services

Question 16

what must be included in adverts

Answer 16

o (d) Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content
 this Rule requires that any communication about a lawyer or law firm’s services include the name of, and contact information for, the lawyer or law firm. Contact information includes a website address, a telephone number, an email address or a physical office location

Question 17

what is a solicitation

Answer 17

o (a) solicitation: a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

Question 18

rule regarding live in-person solicitation (and exception)

Answer 18

o (b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
 (1) lawyer;
 (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or
 (3) person who routinely uses for business purposes the type of legal services offered by the lawyer
 note: “live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection
• such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard

o (c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:
 (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
 (2) the solicitation involves coercion, duress or harassment
o (d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal
o (e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan