Attorney-Client Relationship Flashcards
Creation, Scope, Termination
Attorney-Client Relationship: When is it created?
The lawyer-client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required.
Scope of Representation
Client: Decides the goals and objectives of the representation.
Lawyer: Determines the means of achieving the goals and objectives (strategies, methods, witnesses, etc).
Under California, when can a disagreement between the Scope of Representation warrant withdrawal?
When the disagreement makes the representation unreasonably difficult.
May an attorney assist or advise a client on conduct that is criminal or fraudulent?
No, but an attorney is permitted to discuss legal consequences of a proposed conduct!
Does an attorney have to withdrawal from representation when the client is currently engaging in crime/fraud?
Yes!
NOTE: Differs from the permissive withdrawal exception, as that is when you discover that attorneys services has already been used in the past for crime/fraud.
Could refusing to act aggressively or use strategies requested by the client a violation of the Duty of Competence and Diligence?
It could; however, they are permitted to not follow client directions or orders if it would constitute a breach of an ethical duty.
Does a client have a constitutional right to compel their lawyer to assert issues or follow specific strategies?
No, so long as the attorney is following the Duty of Competence/Diligence and acting on professional judgment.
What happens when a lawyer represents an organization, rather than an individual?
A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents, such as officers, directors, or employees.
MUST explain whom the duty is owed too!
May an attorney jointly represent both an organization and one/multiple of it’s employees?
Yes; but keep in mind that there could be a COI re: Concurrent Clients!
Reporting Organization Misconduct
Upon learning of the misconduct of a person within the company, L must proceed as reasonably necessary.
This means that the L must act in the org’s best interest, if the misconduct is illegal or likely to cause substantial injury to the company.
Reporting Inside an Organization
[ABA][CALIFORNIA]
Steps:
1) Tell the individual who is causing the misconduct to reconsider
2) If fails, report to highest authority in the organization.
Under CA, L cannot report if it violates duty of confidentiality.
Reporting Outside an Organization
[ABA][CALIFORNIA]
If reporting inside the orginzation is either impossible or futile, then the L may either:
ABA: Disclose to outside authority as reasonably necessary to prevent substantial injury.
CA: May not disclose confidential information. The L should withdrawal.
