Attorney Client Relationship

Question 1

CLIENT’S DECISIONS

What decns belong to the CLIENT only?

Answer 1

Client’s decns = those with a substantive legal import:

1. Decision to commence an action
2. Settlement
3. Accept a plea in a criminal case
4. Decision to appeal or not
5. Jury or bench trial choice
6. Testifying in a criminal case

Question 2

ATTORNEY DECISIONS

What decns belong to the ATTY only?

Answer 2

Lawyer’s decisions = those of strategy, procedure, tactics

1. Discovery methods
2. Granting reasonable adjournments that do not prejudice the rights of a client

THUS:
A. Run EVERY settlement from $1 to $1 BN by the client unless stated in writing that you can avoid certain sizes

B. For appeals, you have to ask the client and follow the client’s decision

Question 3

How does a lawyer handle client decision making when a client is a minor OR incapacitated?

Answer 3

If the client cannot make a clear decision or is a minor, you have a guardian appointed

Get a guardian appointed if (NEED ALL 3):

1. Client has diminished capacity; AND
2. At the risk of substantial, physical, financial or other harm; AND
3. Clients cannot adequately act in their own interest

Question 4

What are the 4 circumstances under which a lawyer MUST withdraw?

Answer 4

A Lawyer MUST withdraw when…

1) Lawyer KNOWS representation will result in violation of rules or law
2) Lawyer suffers physical or mental disability (including drug addiction)
3) Client fires lawyer
4) Lawyer KNOWS client is taking steps SOLELY to harass or malicious injure another

Question 5

What are the 9 circumstances under which a lawyer MAY withdraw?

Answer 5

Lawyer MAY withdraw if…

1) Client insists on presenting a frivolous claim or defense
2) Client persists in a course of action involving the lawyer’s services that the lawyer REASONABLY BELIEVES is criminal or fraudulent
3) Client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees
4) Client uses lawyer’s services to perpetrate a crime or fraud (i.e. lawyer learned abt it AFTER rep started)
5) Lawyer’s continued involvement is LIKELY (vs. will) to result in the violation of a law or disciplinary rule
6) Lawyer’s inability to work with co-counsel indicates that the best interests of the client are served withdrawal
7) Client insists on taking action with which the lawyer has a fundamental disagreement (narrowly defined)
8) Client fails to cooperate in the representation
9) Withdrawal can be accomplished without material adverse affect on the client

Question 6

DUTY OF COMPETENCE

What is the duty of competence AND its three prongs?

Answer 6

Lawyers should take only those cases that he or she is competent to handle

This includes:

1. Physical or mental competence
2. Competent in the substantive law
3. Sufficient time to devote to the matter.

NOTE: You can overcome a lack of competence by…

1) association with a competent lawyer; OR
2) becoming competent in the area

Question 7

Can a lawyer limit the scope of representation?

Answer 7

A lawyer CAN limit the scope of the representation IF…

1) The limitation is reasonable; AND
2) Client gives informed consent

NOTE: A lawyer may limit the scope of representation to a particular area of law (i.e., workers’ comp) as long as they explain that there might be other claims AND they get informed consent