Client-Lawyer Relationship Flashcards
1.2- Scope of representation
- 2permits the attorney to limit the scope of the representation if reasonable under the circumstances and the client gives INFORMED CONSENT.
a. you must listen to what your client wants, but you do not have to listen to them on how to get to that outcome. You get to practice in the manner you feel best to get to the client’s objective.
b. Your representation of a person doesn’t endorse that person’s political, economic, social, or moral views or activities.
c. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
d. Lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer KNOWS is criminal or fradulent but may discuss the legal consequences
E.g. Think about the dead baby. Gave legal adivce was fine but once he started questioning his conduct became problematic.
e.g. 2: If lawyer learns client is falsifying his taxes on legal documents you have drafted and lawyer does nothing, lawyer may be held liable for assisting. Must withdraw and in some instances report. If the crime is actively happening and your work is being used, you must withdraw and report.
1.6: Confidentiality of Information
L shall not reveal information relating to the representation of a client unless the client gives informed consent. The disclosure is impliedly authorized in order to carry out the representation. Protected info gained from: client, interviews, documents, etc., any info gained prior to or after representation.
Does not include;
- information generally known
Impliedly authorized examples:
- When a lawyer is asked to admit a fact that cannot properly be disputed
- When a L is asked to make a disclosure that facilitates a satisfactory conclusion to the matter
- L in a firm may disclose to each other information relating to a client of the firm, unless client instructs otherwise.
MR 1.6 (c)
A lawyer shall make reasonable efforts to prevent the inadverent or unathorized disclosure of, or unauthorized access to, information relating to the representation of a client.
1.6(b)
A lawyer MAY reveal confidential information to the exten necessary to :
1- To prevent REASONABLY certain death or substantial bodily harm (overriding value of life and physical integrity)
2- To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s service
3- To prevent, mitigate or rectify substantial injury to the financial interests of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in which the client has used the lawyer’s services.
4. To secure legal advice about the lawyer’s complaince with the Rules;
5. To establish a claim or defense on behalf of lawyer in a controversey b/w lawyer and client or to respond to allegations concerning lawyer’s representation of client.
6- To comply with other law or a court order
1.6(b)(2) &; (3)
A lawyer may reveal information if:
a) revealing the information can prevent client from committing a fraud or crime or mitigate the injury;
b) The crime of fraud would result in substantial injury to the financial interest of another;
c) The client has used or is using the lawyer’s services
Purpose of exceptions:
- To encourage open communication b/w client and lawyer
- Prevent harm to the public
- Protect the integrity of the profession
Model Rule 4.1(b): truthfulness in Statements to Others
Restates Rule 1.6
In the course of representing a client a lawyer shall not KNOWINGLY:
b) fail to disclose a material fact or law to a third person when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client unless disclosure is prohibited by Rule 1.6
MR 1.16(a): Declining or Termianting a Relationship: Mandatory Withraw
A lawyer shall not represent a client or, where represenation has commenced, shall withdraw from the representation if:
1) The representation will result in a violation of the rules of professional conduct or other law;
2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
3) The lawyer is discharged.
MR 1.16(b): Permissive withdraw
A lawyer may withdraw from presenting a client if:
1) Withdraw can be accomplished without material adverse effect on the intersts of the client;
2) The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
3) The client has used the lawyer’s services to perpetrate a crime or fraud;
4) The client insists upon taking action that the lawyer considers repungnant or with which the lawyer has a fundamental disagreement
5) The client fails substantially to fulfill obligation to the lawyer and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6) Representation will result in unreasonable financial burden on the lawyer;
7) Other good cause for withdraw exists.
MR 1.13: Organization as CLient
a) Lawyer employed or retained by an org. represents the org. acting through its dult authorized constituents.
b) Lawyer has an obligation to report conduct within an org. unless lawyer rasonably believes that reporting is not necessarily in the best interest of the org, but the lawyer shall refer the matter to higher authority in the org.
Lawyer MAY reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent lawyer reasonably believes necessary to prevent substantial injury to the ORGANIZATION.
f) In dealing with directors, officers, employees, etc. a lawyer shall explain the identity of the cleint when the lawyer knows or reasonably should know that the organization’s interest are adverse to those of the constituents with whom the lawyer is dealing.
g) Lawyer can represent employees, officers, etc, subject to provisions of 1.7. If organization’s consent to dual representation is required by Rule 1.7, the consent shall be given by the appropriate official of the org.
Sarbanes-Oxley Act
An attorney representing an issuer before the SEC who becomes aware of a potential material violation of the securities laws, fiduciary duty, etc. must follow an up-the-ladder-reporting requirement. Report to CLO and CEO
Lawyer helps client falsify bank loan application
Forbidden under 1.2(d); criminal law
Lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer KNOWS is criminal or fradulent but may discuss the legal consequences
Lawyer finds out after the application is filed by the client without his assistance that client falsified information
Forbidden from revealing under 1.6(a) assuming it is a confidence.
L shall not reveal information relating to the representation of a client unless the client gives informed consent. The disclosure is impliedly authorized in order to carry out the representation. Protected info gained from: client, interviews, documents, etc., any info gained prior to or after representation.
Lawyer unknowingly helps client fill out false insurance application. Learns later that it is false.
1.6(b)(3)- can reveal to extent necessary to prevent or mitigate financial harm.
The client has used or is using the lawyer’s services
Lawyer helps client fill out flase bank loan application, learns later that the information on those forms is untrue. Client continues to receive loans based on that document.
- 6(b)-May reveal information
- 2(d)/1.16(a)- MUST withdraw because continuing representation would be “assisting”
- 1(b)- MUST disaffirm if failure to disclose would be assisting. And if you are still representing cleint
Lawyer helps client fill out false bank loan application. Learns, only after presentation is over, that app is false
- 6(b) or (3)- MAY reveal
- 2(d)- MAY have to disaffirm to avoid assisting
- 1(b) does not apply
MR 1.8(b): Use or disclosure of confidential infomration for personal gain (current client)
A lawyer shall not use information relating to representation of a client to the disadvantage of the cleint unless the client gives informed consent.
This rule applies when the information is beingused to benefit the lawyer or a third persn, such as another client. The rule does not prohibit uses that do not disadvantage the client.
