Attorney/Client Relationship Flashcards
Allocation of Authority
(a) “A lawyer shall abide by a client’s decisions concerningthe objectives of representation and . . . shall consult withthe client as to the means by which they are to bepursued.”* Civil case: Client decides whether to settle.* Criminal case: Client decides what plea to enter,whether to waive jury trial, and whether to testify
Communication
(a) A lawyer shall . . . (2) reasonably consult with the clientabout means used; (3) keep a client reasonably informedabout the status of a matter and (4) promptly comply withreasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonablynecessary to permit the client to make informed decisionsregarding the representation
Can a lawyer withhold information?
In some circumstances, a lawyer may be justified in delayingtransmission of information when the client would be likely toreact imprudently to an immediate communication.Thus, alawyer might withhold a psychiatric diagnosis of a client whenthe examining psychiatrist indicates that disclosure would harmthe client. A lawyer may not withhold information toserve the lawyer’s own interest or convenience or theinterests or convenience of another person.
Diminished Capacity
(A) - When a client’s capacity to make adequately considered decisions inconnection with a representation is diminished [because of age or mentaldisability, e.g.], the lawyer shall, as far as reasonably possible, maintaina normal client-lawyer relationship with the client.*
(B) When the lawyer reasonably believes that the client has diminishedcapacity, is at risk of substantial physical, financial or other harm unless actionis taken and cannot adequately act in the client’s own interest, the lawyermay take reasonably necessary protective action, including consultingwith individuals or entities that have the ability to take action to protect theclient and, in appropriate cases, seeking the appointment of a guardian adlitem, conservator or guardian.
What are the two ways to form a client-lawyer relationship?
Express contract or Relationship implied by conduct
Duties to Prospective Clients
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.* (b) Even when no client-lawyer relationship ensues, a lawyer who has learnedinformation from a prospective client shall not use or reveal that information, exceptas Rule 1.9 [duties to former clients] would permit with respect to information of aformer client.* (c) A lawyer subject to paragraph (b) shall not represent a client with interestsmaterially adverse to those of a prospective client in the same or a substantiallyrelated matter if the lawyer received information from the prospective client thatcould be significantly harmful to that person in the matter, except as provided inparagraph (d). If a lawyer is disqualified from representation under this paragraph, nolawyer in a firm with which that lawyer is associated may knowingly undertake orcontinue representation in such a matter, except as provided in paragraph (d).
Dealing Honestly with Non-Clients
4.1 : No “false statements of material fact or law toa third person”
MR 4.4: Respect for rights of third persons.“[A] lawyer shall not use means that have no other substantial purpose otherthan to embarrass, delay, or burden a third person, or usemethods of obtaining evidence that violate the legal rights ofsuch a person.”
No Contact with Represented Parties
MR 4.2: “In representing a client, a lawyer shallnot communicate about the subject of therepresentation with a person the lawyer knows tobe represented by another lawyer in the matter,unless the lawyer has the consent of the otherlawyer or is authorized by law to do so.
A lawyer must immediatelyterminate communication with a person if, aftercommencing communication, the lawyer learnsthat the person is one with whom communicationis not permitted by this rule
Dealing with an Unrepresented Person
OK TO CONTACT BUT:* MR 4.3: “lawyer must not state or imply thatthe lawyer is disinterested, must clarify anymisunderstanding about the lawyer’s role, andmust not give the person legal advice except forthe advice to secure counsel.
Safeguard Client Funds
General Rule* Lawyers owe a fiduciary duty toclients to safeguard any of theirfunds or property in the lawyer’spossession.
A lawyer shall hold in trust, separate from thelawyer’s own property, funds and property ofclients or third persons that are in a lawyer’spossession in connection with arepresentation. . . . In no event may the lawyercommingle the client’s funds with those of thelawyer or those of the lawyer’s law firm.”
Terminating the Relationship
Mandatory v. Permissive
Mandatory: A lawyer shall not represent a client or, whererepresentation has commenced, shall withdrawfrom the representation of a client if:* (1) the representation will result in violation ofthe rules of professional conduct or other law;* (2) the lawyer’s physical or mental conditionmaterially impairs the lawyer’s ability torepresent the client; or* (3) the lawyer is discharged
Permissive:
A lawyer may withdraw from representing a client if:(1) withdrawal can be accomplished without material adverseeffect on the interests of the client;[1.6(b)(2)-(4) involve client misconduct](2) the client persists in a course of action … that the lawyerreasonably believes is criminal or fraudulent;(3) the client has used the lawyer’s services to perpetrate acrime or fraud;(4) the client insists upon taking action that the lawyerconsiders repugnant or with which the lawyer has afundamental disagreement;.
[1.6(b)(5)-(7) involve attorney hardship]* (5) the client fails substantially to fulfill an obligationto the lawyer regarding the lawyer’s services andhas been given reasonable warning that the lawyerwill withdraw unless the obligation is fulfilled;* (6) the representation will result in an unreasonablefinancial burden on the lawyer or has beenrendered unreasonably difficult by the client; or* (7) other good cause for withdrawal exists
