Attorney/Client Relations Flashcards
Deciding to take a case questions to ask
i. Is the case the type of case your want?
1) Is it interesting?
2) Do you have a personal conviction concerning this case
3) Is this a new area of law?
4) Will it lead to new clients?
ii. Can I competently handle the case?
1) MR 1.1
iii. Do you want the client?
1) Is the client honest?
2) Can the client pay their bills?
3) Is the client the type of person you want to represent?
iv. Is case supportable?
1) Rule 11
a) The lawyers signature constitutes a promise that the lawyer has conducted a reasonable inquiry into facts and law.
b) Research the law and the facts
2) Don’t take it if you can prove Prima Facie Case on at least one theory
a) Must have admissible proof for each element of each claim or
b) Reasonable basis for believing you will get proof during discovery
v. Is the case economically feasible?
1) Does recovery justify fees and costs?
a) Recovery has to be greather than or equal to billable hours + costs
2) Can you charge enough to make it worth your while?
vi. Is there a conflict with the client?
1) MR 1.7
a) A lawyer can’t represent the client if they are directly adverse to a client
A lawyer can’t represent the client if representing the client would materially limit representation of another client.
Writtent attorney client Agreements
1) No writings are required, but it is a good idea to do so.
2) MR 1.5(b)
a) The lawyer must inform the client of how the fee is set (preferably in writing)
3) MR 1.5 (C) Contingency agreements
The client must sign an agreement in contingency and referral cases
Accepting representation
1) MR 1.2(b)
a) The Lawyers representation does not constitute an endorsement of client’s political, economic, social, or moral views or activities.
2) MR 1.16 Comment 7
a) A lawyer may withdraw where the client takes action if the lawyer considers the client or their actions repugnant or the lawyer has a fundamental disagreement
3) MR 6.4
a) The lawyer may serve as a member of an organization involved in reform even if the the reform may affect the clients interests.
Exception: unless there is a conflict of interest MR 1.7
Duty to provide Pro Bono
i. Rules
1) MR 6.1
a) A lawyer has a duty to provide legal services to those who can’t pay.
2) MR 6.1 a
A lawyer should aspire to provide at least 50 hours of pro bono per year
Forming a relationship
1) Restatement 14-19
a) 3 ways to form a relationship
i) By agreement
ii) By accident
By court appointment
Court appointment
2) MR 6.2 Comment 2
a) A lawyer shall not avoid appointment by judge to represent a person except for good cause
b) Good cause:
Could be a violation of ethical rules, unreasonable financial burden, or so repugnant as to likely impair the relationship.
is there an Attorney Client Relationship?
3) QUESTION OF FACT
a) Existence of an A/C relationship depends on the circumstances and is a question of fact.
A/C relationship is not dependent upon a formal agreement or payment of fees, but may be implied by conduct.
Scope of the relationship and duties owed
a) Lawyer is an agent of the client
b) Lawyer has fiduciary duties to C
Lawyer has Professional obligations
models of representation
a) Traditional
b) Hired gun
c) Participatory (you are not responsible
i) A/C Relationship is premised upon assumptions that the client when properly advised is capable of making decisions about important matters.
1. MR 1.14 Comment
ii) The client should participate intelligently in decisions to the extent that the client is willand able to do so
MR 1.4 (5)
Withdrawing from representation
e. Withdrawing from representation
i. If you accept but late withdraw
1) Put it in writing and deliver it to the client
2) Same considerations as declining representations
3) May have greater duties
4) Procedure for obtaining records
No further duties
No Contact Rule
1) MR 4.2(a)
a) A lawyer shall not communicate about the subject of representation with a person he knows to represented by another lawyer, unless with consent or as authorized by a court order
2) Comment 4
a) Rule applies even if represented party initiates or consents, the lawyer must immediately terminate communication
3) Note
Not Applicable to communications outside of the subject matter of representation
non communication through another
1) MR 8.4(a)
a) A lawyer many not violate a rule through the acts of another
A lawyer may not use an intermediary to contact the adverse party directly, I.E. paralegal or private investigator
Client to Client Contact
1) MR 8.4(a)
a) A lawyer many not violate a rule through the acts of another
A lawyer may not use an intermediary to contact the adverse party directly, I.E. paralegal or private investigator
Sanctions for breaking no contact rule
1) Discipline
2) During litigation
a) Excluding evidence
b) Disqualification
Void agreements
Contacting employees of a represented organization
i. State of the law
1) MR 4.2 Comment 7
a) A lawyer many not contact an employee if
i) they have authority to bind organization in the matter
ii) If they supervise or consult with a lawyer, or
iii) Their acts may be imputed to the company.
b) Not
i) Officers/directors, employees responsible for litigation/deal with lawyer, employees are involved in the wrongful act
c) Can
i) Witness to the wrongful act
ii) Other employees
ii. Fact witnesses 1) A lawyer may interview fact witnesses if not in a protected group iii. Former employees 1) 4.2 comment 7 ABA opinion A lawyer need not obtain consent to interview former employees
