Client-Lawyer Relationship Flashcards
Client Lawyer Relationship — 1.1 — Competence
Lawyer SHALL provide competent representation to a client, which requires:
- Skill;
- Knowledge;
- Thoroughness;
- Preparation.
- Must consult with an expert or refuse engagement if not possessive of requisite knowledge.
Client Lawyer Relationship — 1.2 — Scope of Representation and Allocation of Authority Between Client and Lawyer
- Client sets objectives;
- Lawyer MAY limit scope if REASONABLE
- SHALL NOT assist in illegal activities, but MAY discuss consequences
- Views of client are not views of lawyer.
- MAY take such action as impliedly authorized
Client Lawyer Relationship — 1.3 — Diligence
• SHALL act w/ REASONABLE diligence and promptness.
Client Lawyer Relationship — 1.4 — Communication
Lawyer SHALL:
- Promptly inform client of any issue requiring informed consent;
- REASONABLY consult with client regarding means to achieve client’s objectives;
- Must inform client of all settlement offers
- keep client REASONABLY informed about the status of the matter;
- promptly comply with REASONABLY requests for information;
Client Lawyer Relationship — 1.5 — Fees
- No unreasonable fees or expenses.
- Reasonableness is based on time & labor; skill required; need to turn away other business; local rates;
- Communicate to client preferably in writing
*In California, “unreasonable” == “unconscionable”
Client Lawyer Relationship — 1.6 — Confidentiality of Information
- SHALL NOT disclose w/o informed consent or implied consent;
- Secure advice about lawyer’s compliance with rules;
- To defend lawyer in malpractice or against civil or criminal charges;
- To comply with law or court order;
- REASONABLY certain death or substantial bodily harm;
Notes:
- Confidentiality rule applies to all info relating to the representation, whatever its source
- Atty’s use of a hypothetical to discuss issues relating to the representation is ok if there is no reasonable likelihood that the listener will be able to figure out the identity of the client or the situation involved.
- Sometimes, atty may be impliedly authorized to admit a fact that cant properly be disputed or to make a disclosure that facilitiates a satisfactory conclusion to the matter
- Lawyers in a firm may, in the course of the firms practice, disclose to each other info relating to a client of the firm
- Harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
- When practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure
- The duty of confidentiality continues after the atty-clt relationship has terminated
Client Lawyer Relationship — 1.7 — Conflict of Interest: Current Clients
• SHALL NOT represent client IF:
A) it will adversely impact another client, OR
B) will limit representation of another client;
UNLESS:
- the lawyer believes he can handle both (all) cases competently and diligently;
- Not prohibited by law;
- The case does not involve the claims of one client against another represented by the same lawyer in the same litigation;
- Each affected client gives informed consent confirmed in writing.
- “Positional conflict of interest” = okay to have discrepancies as long as not material.
- In CA:
1) Client must SIGN the informed consent writing.
2) If your OWN INTEREST, you don’t decide if it is substantial or not – you MUST disclose.
Client Lawyer Relationship — 1.8 — Conflict of Interest: Current Clients: Specific Rules
a) Cannot Enter Into Business Arrangement With Client Or Acquire Any Ownership Interest Adverse To The Client Unless:
• Deal is fair and reasonable;
• Deal is disclosed in plain language in writing to the client;
• Client is advised in writing to seek advice of an independent attorney and is given adequate time to do so;
• Client gives informed consent signed in writing agreeing to the terms of the deal, the lawyers role, and indicating whether or not the lawyer is representing the client in that particular deal.
b) Cannot use information to the disadvantage of the client unless the client gives informed consent or required by the rules.
c) No gifts unless related to the client.
d) No media or book rights based on representation in the case
e) No financial assistance to client except court costs and expenses in contingency cases; or if the client is indigent.
f) No third party fees accepted unless:
• Client gives informed consent;
• No interference with professional judgment for with client-lawyer relationship;
• Information relating to representation of client is protected as required by Rule 1.6.
g) When representing multiple clients, no blanket settlement or plea unless each involved client gives signed informed consent in writing and lawyer discloses existence and nature of all deals or pleas.
h) No agreement limiting lawyer’s malpractice liability unless client has independent counsel AND malpractice settlement with unrepresented clients unless client is advised in writing to seek independent legal counsel.
i) Lawyer cannot acquire proprietary interest in a case unless acquiring a lien against fees or it is a contingency fee deal.
j) No sex with client unless it pre-dated the client-lawyer relationship.
k) Any prohibition in this rule except for sex applies to all members of a firm if it applies to one member.
CA RULES
Rule 3-300 No security interest adverse to client
Rule 4-400 is same as MR 1.8c gifts.
Rule 4-210
OK to pay third parties on behalf of client with client consent; can loan money after
Client Lawyer Relationship — 1.9 — Duties to Former Clients
a) Cannot represent a client if the persons interests are materially adverse to a former client in the same or substantially related matter
b) Lawyer cannot represent a client if your old firm represented an adversarial party or if you at the old firm you gained privileged (Rules 1.6 and 1.9(c)) information about the adversarial party.
c) If you or your firm or your former form ever represented a client you can never use any information you gained during that representation against the client nor can you even disclose the existence of the representation unless it is permitted in the rules or has become generally known.
EXAM:
2 most important Questions to ask in determining if a former client is still a
• 1) how long ago was the former representation
• 2) what was the standing of the represetation
Key distinction
• - with a former client, you can ALWAYS proceed with consent. There are no unconsentable conflicts!!
Questions to Ask
• is it a former client?
• Is the subject matter the same or substantially related to the current representation.
• No? then its ok, represent the client
• Yes? Then is the representation materially adverse
If you represent clients JOINTLY, you have a DUTY to tell them that there is no confidentiality between one client and another.
Client Lawyer Relationship — 1.10 — Imputation of Conflicts of Interest
a) If any lawyer in a firm is barred by the rules from representing a client; then the entire firm is barred unless the barred lawyer’s interest in the case is purely personal and will not affect any of the firm’s other lawyers.
b) If a lawyer with specific knowledge of a case and a client leaves the firm; and if the firm no longer represents that client; then the firm is free to represent someone with interests materially adverse to that client UNLESS it is the same case and someone remaining at the firm has privileged information about the former client.
c) Disqualifications under this rule may be waived by the client under the conditions of MR 1.7.
d) Disqualification of lawyers in a firm with former or current government lawyers is governed by MR 1.11.
In California, imputation is a court-created doctrine.
CA Distinction – Doesn’t have screening as the rule
Re: (1) Material interest = something substantial, like owning stock in a company or being married to a lawyer in another law firm.
Look for something that only a single attorney in a firm would have.
Re: (2) Traveling Lawyer exception
Client Lawyer Relationship — 1.11 — Special Conflicts of Interest for Former and Current Government Officers and Employees
a) Current or former government lawyers are subject to MR 1.9(c) and also cannot represent a client in a matter over which the lawyer had substantial involvement while working for the government unless the government gives its informed consent confirmed in writing.
b) If one lawyer in a firm is barred from a matter under this rule then so are all lawyers in the firm unless the lawyer is appropriately screened from participation in the matter AND written notice is provided to the government so that they can ascertain compliance with the rules.
c) If a lawyer obtained confidential information about a person while working for the government he cannot represent someone with materially adverse interests. However, the firm can as long as the lawyer is timely screened from participation and receives no share of the fee on that engagement.
d) Current government employees are subject to MR 1.7 and MR 1.9(c) AND may not participate in matters he was involved with while not a government employee unless the government gives its informed consent confirmed in writing.
Present government lawyers are subject to restrictions of 1.9a, 1.9c, 1.11, and 1.7.
Client Lawyer Relationship — 1.13 — Organization as Client
a) Lawyer works for the company.
b) If lawyer knows that an officer, employee, or other person associated with the company is about to act illegally or against the best interest of the company, the lawyer must protect the organization.
• Try to minimize disruption to the company.
• Ask for reconsideration of the matter.
• Advise the person that a second legal opinion should be sought in order to present company management with two opinions.
• Go higher up or to the top of the company.
c) If lawyer goes to the top and no change, lawyer may resign per MR 1.16.
d) Lawyer should always point out that his client is the company, especially when meeting with officers or employees whose interests may differ from the company’s.
Lawyer can represent the company and its officers or employees as long as an officer of the company (not the one being represented) approves the dual representation per MR 1.7.
1.13
CA distinction – CA’s rule of confidentiality applies here, bc CA doesn’t allow u to report to outsiders, and CA only allows revealing confidences in CRIM case, and only to prevent serious bodily harm or death
Client Lawyer Relationship — 1.14 — Client With Diminished Capacity
a) Try to retain normal relationship.
b) If lawyer believes that client cannot act in own best interests and is at risk, lawyer may talk to others able to take action to protect client or to seek appointment of a guardian ad litem, conservator, or guardian.
c) Lawyer may release information under MR 1.6(a) but only to the extent necessary to protect the client’s interests.
When asking questions, start with broad/open question (to verify someone’s mental capacity; e.g., client who wants to cut children out of will).
Client Lawyer Relationship — 1.16 — Declining or Terminating Representation
a) Must withdraw and cannot begin representation if:
• Representation will violate rules.
• Lawyer physically or mentally unfit.
• Lawyer is discharged.
b) May withdraw if:
• No material adverse impact on client.
• Client persists in illegal or fraudulent activity.
• Client has used lawyer’s services to perpetuate a fraud or crime.
• Client insists on action that lawyer disagrees with.
• Client does not meet obligation to lawyer and has been reasonably warned.
• Engagement has become an unreasonable financial burden on the lawyer or the client has made the engagement unreasonably difficult.
• Other good cause for withdrawal.
c) Lawyer must notify the court of planned withdrawal per court rules.
d) Lawyer should make termination as easy on client as possible; give time to find another lawyer; return unused retainer, papers, etc.
Client Lawyer Relationship — 1.18 — Duties to Prospective Client
a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship is a prospective client.
b) Even if lawyer is not hired, no information may be disclosed except former client info per MR 1.9.
c) Lawyer cannot represent a client with interests adverse to the prospective client if the prospective client provides the lawyer with information potentially harmful to the potential client. If one lawyer in a firm is disqualified under this rule, then the whole firm is disqualified except as in (d).
d) Exceptions to c:
• Both prospective and current clients provide informed consent confirmed in writing.
• Lawyer who received the information tried to stop the client from telling him more and
i) The disqualified lawyer is timely screened
Prompt written notice to the prospective client.
