Client-Lawyer Relationship - Forming a Client-Lawyer Relationship Flashcards
What is the standard of belief required for forming a Client-Lawyer Relationship?
The Standard is Reasonableness. If a Client’s belief that a relationship was formed is unreasonable then no client-lawyer relationship formed.
MR 1.3 - Diligence
A Lawyer must act with reasonable diligence and promptness in representing a client.
Comment:
A) a lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.
B) a lawyer should have a reasonable workload and abhor procrastination.
C) unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.
MR 1.7 (a) - Cannot represent due to Conflict
A lawyer shall not represent a client if the representation involves a concurrent conflict of interest, defined as:
a) representation of one client will be directly adverse to another client; or
b) a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
MR 1.7 (b) - Can represent despite Conflict.
Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes they will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
MR 1.7 - Comments
A) A conflict of interest may exist before representation is undertaken, in which event the representation must be declined… which is why procedures for screening must be instituted. If not, ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this Rule.
B) If a conflict arises after representation begins, then the lawyer must withdraw from representation except under § 2.
C) A lawyer must continue to protect the confidences of a client he has withdrawn from.
D) Simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.
E) Directly adverse conflicts can also arise in transactional matters. Example: Having a relationship with parties from both sides of the deal and then representing one side would be a conflict.
F) The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Classic Example: Joint Ventures in which partners interest may become limited due to the venture.
G) A lawyer’s personal relationships can cause a conflict. However, disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated.
H) A lawyer can’t fuck a client, unless such a relationship predates their representation.
I) A lawyer can be paid for by a third-party so long as that payment does not compromise his duty of loyalty to his client.
J) § 2(a), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation.
K) § 2(b) describes conflicts that are nonconsentable because the representation is prohibited by applicable law
L) § 2(c) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal.
M) A client may consent to waive future conflicts of interest only if the client reasonably understands the material risks that the waiver entails.
MR 1.8 - A lawyer cannot accept compensation from a third-party.
A lawyer shall not accept compensation for representing a client from one other than the client unless
1) the client gives informed consent;
2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
3) information relating to representation of a client is protected as required by Rule 1.6.
MR 1.8 - Prohibition of business transaction with client
A) A lawyer can’t enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
a) transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing
b) client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel
c) client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
MR 1.8 - Current Clients: Specific Rules
B) Information gained from a client can’t be used to their disadvantage unless, they give informed consent.
C) A lawyer cannot solicit a substantial gift from a client. Or prepare the materials by which said gift will be given to them.
D) A lawyer cannot at the conclusion of the representation make or negotiate an agreement giving the lawyer literary or media rights from the client based on information gained from their representation.
E) A lawyer cannot help a client financially, except:
F) advancing court costs and expenses of litigation, which can be contingent upon the litigation’s outcome.
b) paying court costs and expenses of litigation on behalf of an indignant client.
c) if the representation is pro bono, a lawyer can provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. (Non-reimbursable)
G) A lawyer cannot:
a) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
b) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
Comments:
A) This rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities’ services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in § 1 are unnecessary and impracticable.
B) a substantial gift may be voidable by the client under the doctrine of undue influence
MR 1.9 (a) - Duties to Former Clients (Individual)
A) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
MR 1.9 (b+c) - Duties to Former Clients (Firm)
B) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client,
a) whose interests are materially adverse to that person; and
b) about whom the lawyer had acquired information material to the matter; unless the former client gives informed consent, confirmed in writing.
C) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
a) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
b) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
MR 1.9 - Comments
Comment:
A) “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.
B) if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.
C) information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
D) provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent
Brennan’s v. Brennan’s
When an attorney is disqualified due to his joint representation of Plaintiffs and Defendants, because the attorney’s ethical duty to his clients is broader then the rule prohibiting the divulgence of privileged information.
Moreover an attorney who is associated as co-counsel will not also be disqualified, because he had no relationship to either party, only to the attorney.
Santacroce - Filing Date for purposes of MR 1.7
The complaint’s actual filing date is not particularly significant when notice of the proposed complaint is what precipitated the events pertinent to this motion.
MR 1.10 - Imputation of Conflicts of Interest: General Rule
A) Lawyers associated in a firm cannot knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless:
a) the prohibition is based on a personal interest… without a significant risk of materially limiting the representation by the remaining lawyers
b) the prohibition is based upon Rule 1.9 §§ A or B; and arises out of the disqualified lawyer’s association with a prior firm, and:
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;
(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule; and
(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.
B) A firm is not prohibited from representing a person with interests materially adverse to those of a client represented by a formerly associated lawyer (who has left) and is not currently represented by the firm, unless:
a) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
b) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9 § 3, that is material to the matter.
C) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
D) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
Comment:
A) a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client
B) the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information
C) informed consent is only required by § C.
MR 1.16 (A) - Declining or Terminating Representation (Prohibition on Withdrawal and Comments)
A) A lawyer shall not represent a client or withdraw from the representation of a client if:
a) the representation will result in violation of the rules of professional conduct or other law;
b) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
c) the lawyer is discharged.
Comment:
A) Mandatory Withdrawal: if a client demands that the lawyer engage in conduct that is illegal or violates the Rules, or other law; and must be approved by the court (withdrawal is required). The Court must take a lawyer’s request at face value to avoid potentially breaching confidentiality.
B) Discharge: a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.
C) Optional Withdrawal: if it can be accomplished without material adverse effect on the client’s interests; services were misused in the past even if that would materially prejudice the client; lawyer considers repugnant or with which the lawyer has a fundamental disagreement; client refuses to abide by the terms of an agreement relating to the representation.
