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professional responsibility > CLIENT-LAWYER RELATIONSHIP > Flashcards

CLIENT-LAWYER RELATIONSHIP Flashcards

1
Q

Rules // RELATIONSHIPS BETWEEN LAWYERS AND CLIENTS

A

o R.1.1 COMPETENCE
o R.1.3 DILIGENCE
o R.1.4 COMMUNICATIONS
o R.1.18(a)-(c) DUTIES TO PROSPECTIVE CLIENT
o R.2.1 ADVISOR
o R.1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
o R.1.14 CLIENT WITH DIMINISHED CAPACITY
o R.1.16 DECLINING OR TERMINATING REPRESENTATION

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2
Q

LAWYER’S DUTY TO CLIENT // 8 duties

A
  1. A lawyer must represent a client competently
  2. A lawyer must allow the client to make crucial decisions (with consultation)
  3. A lawyer and client may agree to limit the scope of the lawyer’s representation (e.g., the lawyer will handle the trial, but not any appeals) if the limitation is reasonable under the circumstances, with 4 exceptions
  4. A lawyer may not knowingly assist a client in fraudulent or illegal conduct or advise a client on how to violate the law with impunity or evade prosecution
  5. A lawyer must diligently represent a client
  6. A lawyer must keep the client informed
  7. A lawyer’s fees and expenses must not be unreasonable
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3
Q

LAWYER’S DUTY TO CLIENT // duty of competence

A

Rule = a lawyer must represent a client competently

R.1.1 COMPETENCE

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4
Q

R.1.1 DUTY OF COMPETENCE // “competent representation”

A
  • requires the legal knowledge, skill, thoroughness, and preparation reasonably required
  • generally, the required proficiency is that of a general practitioner

EXAMPLE =

  • L represented A in the case of A v. B.
  • B prevailed at the trial court.
  • Under the applicable rules, A has 30 days to file a notice of appeal.
  • Because of a vacation and a busy schedule, L failed to comply with the 30-day deadline and A is now barred from pursuing an appeal.
  • If the appeal had been filed, A would have prevailed.
  • L is subject to discipline and subject to civil liability (i.e., malpractice)
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5
Q

R.1.1 DUTY OF COMPETENCE // 7 key takeaways

A
  1. a lawyer may (but is usually not required to) consult with other lawyers/experts to acquire the requisite competency
  2. a lawyer may acquire expertise (e.g., by studying, researching) in a particular field in order to represent a client
  3. in emergencies, a lawyer may give advice or assistance on issues on which the lawyer is not fully competent, but the lawyer should refer the client to a competent lawyer or associate with a competent lawyer as soon as practical; the lawyer should also limit emergency advice to that reasonably necessary
  4. a lawyer should engage in continuing study and education of the law, even if not compulsory; (formal CLE, however, is not required by the Rules, but is required by most state bars)
  5. a lawyer must decline representation if the lawyer believes that she is not (and cannot become) competent to effectively represent the client
  6. if a lawyer fails to competently represent a client and the client suffers damages as a result thereof, the lawyer is subject not only to discipline but also may be subject to civil liability
  7. The Rules do not require malpractice insurance, but such insurance is advisable
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6
Q

R.1.1 DUTY OF COMPETENCE // fee-splitting

A

fee-splitting with attorneys outside the lawyer’s firm requires written consent of the client

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7
Q

R.1.1 DUTY OF COMPETENCE // consulting expert

A
  • lawyer may retain a “consulting expert” in a field other than law to assist the lawyer in representing a client
  • a consulting expert’s opinions, etc. are generally protected from disclosure under FRCP.26
  • the consulting expert can sit at counsel table, attend depositions, attend settlement negotiations, etc.
  • lawyer may be required to consult with another lawyer if the matter calls for some specific expertise, such as patent law or admiralty, that the ordinary lawyer does not possess
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8
Q

R.1.1 DUTY OF COMPETENCE // acquiring expertise

A

a lawyer may acquire expertise (e.g., by studying, researching) in a particular field in order to represent a client

EXAMPLE = client asks her friend, a criminal defense lawyer, to draft a will for client; although attorney has no experience drafting wills, the attorney may acquire such expertise through necessary study to handle the client’s case

EXAMPLE = A has a difficult tax problem. A visits her former college roommate, L, and asks L to represent her. L is a domestic relations lawyer and has never handled a tax problem. A insists that L take the case. May L take the case? Yes, if A undertakes a study of tax law necessary to competently handle the matter

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9
Q

R.1.1 DUTY OF COMPETENCE // emergency advice

A
  • in emergencies, a lawyer may give advice or assistance on issues on which the lawyer is not fully competent, but the lawyer should refer the client to a competent lawyer or associate with a competent lawyer as soon as practical
  • the lawyer should also limit emergency advice to that reasonably necessary

EXAMPLE = a tax lawyer may assist a client with bail for a DUI at 2:00 a.m. when no other lawyers are available, but should refer the case to another lawyer as soon as practical. If the tax lawyer mishandles the bail issue, the lawyer will probably not be disciplined because of the emergency nature of the matter.

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10
Q

R.1.1 DUTY OF COMPETENCE // use of ABA Rules/violation in liability cases

A

Rule are not to be used in court to establish the applicable standard of care, but may be used in malpractice cases as “relevant evidence” of a breach of the standard of care

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11
Q

R.1.2 SCOPE/ALLOCATION // civil cases

A

in civil cases, the client decides whether to sue and whether to settle

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12
Q

R.1.2 SCOPE/ALLOCATION // criminal cases

A

in criminal cases, the client decides what plea to enter (e.g., guilty or innocent), whether to waive a jury trial, whether to testify, and whether to appeal

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13
Q

R.1.2 SCOPE/ALLOCATION // tactical decisions

A

tactical decisions are generally made by the lawyer, after consultation with the client (where possible)

EXAMPLE = whether to depose a witness

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14
Q

R.1.2 SCOPE/ALLOCATION // technical decisions

A

technical decisions are generally made by the lawyer, after consultation with the client (where possible)

EXAMPLE = whether to consent to an extension to file discovery responses

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15
Q

R.1.2 SCOPE/ALLOCATION // client objections to tactical/technical decisions

A

generally, if a client objects to a lawyer’s tactical or technical decisions, the lawyer should defer to the client’s wishes, unless the client’s wishes are contrary to the Rules or the law

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16
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // general rule

A

if a client’s decision-making ability is impaired, the lawyer shall try to maintain a normal lawyer-client relationship to the maximum extent possible and treat the client with the same attention and respect as all other clients

AKA treat them like normal client as to division of authority/decision

R.1.14(a) CLIENT WITH DIMINISHED CAPACITY

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17
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // disability

A
  • disability may not affect ability to understand and make decisions = even opinions of children as young as 5 or 6 should carry weight (CMT 1)
  • may let family members participate in decision with lawyer BUT must keep client’s interest foremost and must look to client, not family members to make decisions EXCEPT for protection action authorized under (b) (CMT 3)
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18
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // 2 most common examples

A

most common applications of R.1.14

  1. mental incompetence/disability
  2. underage/minors
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19
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // narrow exception to general rule

A
  • (b) allows flexibility for narrow exception to (a)’s general rule
  • 3 conditions = if satisfy all 3, “may” act against client’s wishes (not mandatory)
    1. Has diminished capacity
    2. Is at risk of substantial physical, financial, or other harm unless action is taken
    3. Cannot adequately act in client’s own interest

R.1.14(b) CLIENT WITH DIMINISHED CAPACITY

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20
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // ABA standards for abuse/neglect cases

A

ABA standards of practice for lawyers who represent children in abuse and neglect cases
- Standard B-4 = mentioned with exception on SEE PG. 315

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21
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // determining extent of diminished capacity

A

4 FACTORS

  • client’s ability to articulate reasoning leading to decision
  • variability of state of mine and ability to appreciate of consequences of decision
  • substantive fairness of decision
  • consistency of decision with known long-term commitments and values of client
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22
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // confidentiality

A
  • Confidentiality of R.1.6 applies

- SEE CMT 8

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23
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // appointment of guardian

A
  • in extreme cases, the lawyer may seek the appointment of a guardian (or other appropriate action, such as referring a client for evaluation), but only if the lawyer reasonably believes the client cannot adequately act in the client’s own best interests
  • in such cases, the lawyer is impliedly authorized to disclose confidential client information to the extent necessary to protect the client’s interests
  • if a guardian has been appointed, the guardian is authorized to make decisions for the ward, but the lawyer shall continue to treat the ward with attention and respect
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24
Q

R.1.14 CLIENT WITH DIMINISHED CAPACITY // protecting impaired client

A
  • in an emergency (where the client’s health, property or finances are at risk and the client has no other representative), a lawyer may take steps to protect an impaired client even if the client is unable to establish an attorney-client relationship
  • the lawyer should only take such steps as are necessary to maintain the status quo, and normally should not seek compensation for such representation
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25
Q

R.1.2 SCOPE/ALLOCATION // limiting scope of representation – rule

A

A lawyer and client may agree to limit the scope of the lawyer’s representation if the limitation is reasonable under the circumstances

EXAMPLE = lawyer will handle trial, but not any appeals

26
Q

R.1.2 SCOPE/ALLOCATION // limiting scope of representation – unbundling

A

= agreement between lawyer and client whereby lawyer agrees to provide some but not all of the service

R.1.2(c) allows this if
- Reasonable AND
- Client gives informed consent
(Must give disinterested advice if additional services needed)

27
Q

R.1.2 SCOPE/ALLOCATION // limiting scope of representation – exceptions

A

Lawyer may not

  • limit the right of the client to fire the lawyer
  • ask the client to accept “incompetent” representation
  • limit the client’s right to settle the case
  • prospectively limit the lawyer’s liability for malpractice

EXAMPLE = waive claims for ordinary negligence

EXAMPLE = L’s standard retainer agreement contains the following clause: “Client agrees not to hold Lawyer liable for negligence and agrees not to file suit against Lawyer.” L is subject to discipline

28
Q

R.1.2 SCOPE/ALLOCATION // allocation of decisions

A

R.1.2(a) = client decides objectives, lawyer consults with client as to means

(Mirrors rules of candor under R.1.4)

29
Q

R.1.2 SCOPE/ALLOCATION // when lawyer and client disagree

A
  • SEE CMT 2, R.1.2

- Normally defer to specialized knowledge of lawyer for means, to client for expense

30
Q

R.1.2 SCOPE/ALLOCATION // delegation of authority

A

Clients may delegate authority to lawyer (CMT 3)

31
Q

R.1.2 SCOPE/ALLOCATION // decisions off-limits for lawyers

A

Civil = client decides only whether to settle

Criminal = client decides whether to

  • Plead guilty
  • Waive jury trial
  • Testify
32
Q

R.1.2 SCOPE/ALLOCATION // JONES V. BARNES (1983)

A
  • Issue = whether client decides what issues to raise
  • Holding = only decided constitutional minimum that 6th amendment doesn’t require you to raise frivolous arguments just because client wants to
  • P.S. = Ethical rules can require more than constitutional minimum
33
Q

R.1.2 SCOPE/ALLOCATION // difference between objective and means

A
  • R.1.2 doesn’t define objectives

- Rationale for rules not providing more explicit guidance = lawyer talk to client

34
Q

LAWYER’S DUTY TO CLIENT // assistance in fraudulent/illegal conduct – 3 takeaways

A
  • lawyer may not knowingly assist a client in fraudulent or illegal conduct or advise a client on how to violate the law with impunity or evade prosecution
  • a lawyer may, however, explain the consequences of fraudulent or illegal conduct and may assist the client in making a good faith effort to determine the validity, scope, or meaning of the law (i.e., looking for a valid loophole)
  • if a client asks for advice on breaking the law or committing fraud, the lawyer is required to explain to the client the relevant limits on the lawyer’s conduct (e.g., “I cannot give you advice on how to evade taxation”)
  • if the client insists upon pursuing illegal or fraudulent conduct (or has used the lawyer’s advise to commit such acts), the lawyer may withdraw and, in some cases, may reveal the crime or fraud (SEE R.1.6(b)(2) and (3))
35
Q

LAWYER’S DUTY TO CLIENT // duty of diligence

A

the lawyer should pursue a client’s matter diligently, despite the lawyer’s own schedule and any normal obstacles

EXAMPLE = L repeatedly fails to meet discovery deadlines for no legitimate reason. Although her clients are not injured by such actions, L would be subject to discipline.

R.1.3 DILIGENCE

36
Q

R.1.3 DILIGENCE // continuances

A

a lawyer, however, may agree to ordinary continuances, etc., where the client will not be prejudiced (even if the client generally opposes delays)

R.1.3 DILIGENCE

37
Q

R.1.3 DILIGENCE…? // solo practioners

A

Solo practitioners should make arrangements for another lawyer to review his or her files and contact his or her clients in the event the solo practitioner suddenly becomes disabled or dies unexpectedly

R.1.3 DILIGENCE

38
Q

LAWYER’S DUTY TO CLIENT // declining or terminating representation

A
  • a lawyer has a duty to inform (preferably in writing) a client that the lawyer will not handle a matter for the client or is no longer representing the client
  • Any reasonable doubts will be resolved in favor of the client (e.g., a client may assume that his or her trial attorney will handle the appeal, unless the lawyer makes clear otherwise)

EXAMPLE = A visits L’s office and asks L to represent him in an automobile accident case. L only handles tax cases, so L declines to represent A. L should (1) advise A to visit other lawyers; (2) advise A of any impending deadlines (e.g., statute of limitations – if the deadline is about to expire, L may be required to do more, such as filing a complaint for A before declining representation); (3) protect A’s confidences; and (4) notify A in writing that he is declining the representation.

R.1.16 DECLINING OR TERMINATING REPRESENTATION

39
Q

R.1.16 DECLINING/TERMINATING REPRESENTATION // 4 key takeaways

A
  • client can discharge lawyer anytime, with or without cause (CMT 4)
  • if client fires lawyer, lawyer shall withdraw (but court may order lawyer to continue representation)
  • Client still subject to liability for payment
  • If under retainer, lawyer must return any fees not yet earned

R.1.16 DECLINING OR TERMINATING REPRESENTATION

40
Q

R.1.16 DECLINING/TERMINATING REPRESENTATION // 3 reasons lawyer required to terminate

A

3 reasons lawyer is required to terminate client’s representation UNDER R.1.16(a)

  1. If client fires lawyer
  2. If lawyer’s illness/loss of capacity would materially impair representation
  3. If representation will require lawyer to violate law (including PR rules)

R.1.16 DECLINING OR TERMINATING REPRESENTATION

41
Q

R.1.16 DECLINING/TERMINATING REPRESENTATION // outline of R.1.16

A
  • R.1.16(a) = when required to withdraw
  • R.1.16(b) = when permissible to withdraw
  • R.1.16(c) = might need court’s permission to withdraw
  • R.1.16(d) = upon termination of representation, have duty to protect client interest

R.1.16 DECLINING OR TERMINATING REPRESENTATION

42
Q

R.1.16 DECLINING/TERMINATING REPRESENTATION // duty to protect client interest

A
  • Includes duty to return papers to client
  • Lawyer may retain some paper until client pays, but only to extent permitted by law

R.1.16 DECLINING OR TERMINATING REPRESENTATION

43
Q

LAWYER’S DUTY TO CLIENT // duty to inform – rule

A
  • A lawyer must keep the client informed
  • this is an affirmative duty

R.1.4 COMMUNICATIONS

44
Q

R.1.4 COMMUNICATIONS // duty to inform – 5 requirements

A

it requires the lawyer to
1. promptly respond to client requests for information
2. promptly inform the client of any decision requiring the client’s consent
3. promptly inform a client of all offers to plea bargain, all settlement offers
promptly inform client of receipt by the lawyer of any client funds (e.g., settlement checks) or property
4. keep the client reasonably informed about the status of the matter
5. consult with the client about any limitations on the lawyer’s conduct mandated by the Rules

R.1.4 COMMUNICATIONS

45
Q

R.1.4 COMMUNICATIONS // 3 exceptions to duty to inform

A
  • If client previously made clear that such offer would be unacceptable, MAY choose not to inform them of settlement offer/plea bargain
  • In extraordinary circumstances, a lawyer MAY delay communication if the lawyer believes the client may react imprudently (e.g., if a mental health worker has advised the attorney that the client may become violent or suicidal upon learning the information)
  • a lawyer MUST withhold information from a client if so ordered by the court (i.e., an “attorneys’ eyes only” protective order)

R.1.4 COMMUNICATIONS

46
Q

R.1.4 COMMUNICATIONS // affirmative duty

A

Lawyer must provide information to client without request

R.1.4 COMMUNICATIONS

47
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // undertaking representation – general rule

A

Lawyer has discretion to refuse to represent

R.1.18 LAWYER-CLIENT RELATIONSHIP

48
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // undertaking representation – 4 exceptions

A
  • Court-appointment (except can decline for good cause) R.6.2 - for indigence criminal Ds
  • Pro bono duties R.6.1
  • Client violating law or professional ethics rulesR.1.2(d) and R.1.16
  • Anti-discrimination under R.1.2(d) and R.1.16

R.1.18 LAWYER-CLIENT RELATIONSHIP

49
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // forming relationship – 3 takeaways

A
  • Written agreement or money = not required to form relationship
  • Triggers/ruled by R.1.18 duties to prospective client (= duty of confidentiality and duty of loyalty)

R.1.18 LAWYER-CLIENT RELATIONSHIP

50
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // trigger of duties

A

Duties triggered ONLY when lawyer gives legal advice

  • triggers duty of competence under R.1.1 (CMT 9)
  • triggers duty to safeguard property under R.1.15 (CMT 9)

R.1.18 LAWYER-CLIENT RELATIONSHIP

51
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // forming relationship – prospective client

A
  • Very broad definition under R.1.18(a)
  • BUT person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a prospective client
  • SEE R.1.18(a) for definition

R.1.18 LAWYER-CLIENT RELATIONSHIP

52
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // forming relationship – consultation

A
  • Whether communications constitute a consultation depends on the circumstances
  • can be electronic, written, or verbal (CMT 2)

R.1.18 LAWYER-CLIENT RELATIONSHIP

53
Q

FORMATION OF LAWYER-CLIENT RELATIONSHIP UNDER R.1.18 // forming relationship – legal advice

A

= assistance on the merits of a matter

R.1.18 LAWYER-CLIENT RELATIONSHIP

54
Q

LAWYER’S RESPONSIBILITIES AS AGENTS // actual authority

A

= client represents lawyer’s authority to 3P

55
Q

LAWYER’S RESPONSIBILITIES AS AGENTS // apparent authority

A

= client express or implies to lawyer

56
Q

LAWYER’S RESPONSIBILITIES AS AGENTS // 2 times that actions of lawyer may not bind client

A
  1. Waiver of privilege

2. Settlement

57
Q

R.1.1 COMPETENCE // billing for hours gaining background experience

A
  • Generally okay
  • Not required to have separate research rate
  • But if bill is excessive, can be subjected to discipline under R.1.5
58
Q

LAWYER’S DUTY TO CLIENT // duty of honesty

A

R.2.1 = candor in counseling

  • Can use non-law considerations of moral, economic, political concerns/implications
  • Lawyer can’t avoid giving advice client doesn’t like (CMT 1)

R.2.1 ADVISOR

59
Q

LAWYER’S DUTY TO CLIENT // duty of diligence

A
  • Lawyer gotta act with reasonable diligence and promptness in representing client
  • Must carry all matters undertaken for a client to conclusion, (leaving firm, must formally switch) (CMT 4)
  • Includes duty to manage workload
  • No longer bound to be “zealous” (CMT 1, R.1.1)

R.1.3 DILIGENCE

60
Q

COMPETENCE IN CRIMINAL CASES // STRICKLAND V. WASHINGTON

A

Re: ineffective assistance of counsel

2-prong test

  1. UNREASONABLE = Counsel made errors so serious that wasn’t acting in accordance with 6th amendment guarantee
  2. PREJUDICIAL = Reasonable possibility that but-for counsel’s unprofessional errors, result would have been different
    - Separate constitutional standard from professional ethical rule standard
    - Constitutional standard is just the minimum requirement

R.1.1 COMPETENCE

61
Q

R.1.2 SCOPE/ALLOCATION // 4 takeaways for limiting malpractice liability

A
  • may prospectively limit client’s ability to make malpractice claim IF represented by independent and reasonable
  • may prospectively enter into arbitration agreements with client IF enforceable and client’s fully informed of scope/effect
  • rule doesn’t affect LLPs/LLCs as long as each lawyer is still personally liable, blah, blah
  • can enter into settlement agreement with client for malpractice IF lawyer informed client in writing of appropriateness of independent counsel AND gave client reasonable time to find/consult independent

professional responsibility (12 decks)

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