Declining representation and terminating the A/C Relationship Flashcards
NOTE – for rule 1.16 LOOK AT PRINT OUT NOT THE RULE IN THE BOOK
briefly explain what scenario each section of 1.16 declining or terminating representation governs
1.16(a) – must withdraw or decline
1.16(b) may withdraw or decline
1.16(c)court approval/other requirements to withdraw
1.16(d) duties upon withdraw
under 1.16(a) when MUST a lawyer withdraw from or decline representation
(a)(1) Rep will result in violation of MR or other law
(a)(2) lawyer’s physical or mental condition renders them too sick to be competent
(a)(3) the lawyer was fired
(a)(4) the cliemt/prospective client is using(ie ONGOING CRIME) the LAYWER’S SERVIVCES to commit a crime/fraud plus 1.2(d) knowlege
1.16(a) requires the lawyer to withdraw in certain situations and to not employ willful blindness
“Shall inquire into and assess the facts and circumstances of each representation”
via comment two, this means that the required level of a lawyer’s inquiry and assessment will vary for each client or prospective client, depending on the nature of the risk posed by each situation
what are some of the factors listed out in COMMENT TWO?
- Identity of the client
- the lawyer’s expiernce and familiarity with the client
- the nature of the requested legal services
- the relevant jurisdictions involved in the rep
- the identities of those depositing into or receiving funds from the lawyer’s client trust account,
1.16 (a)(4) – crime/fraud was added via ammemdent – why?
what is the equation for (a)(4) crime fraud
was added because of money laundering
We are focused on this because lawyers services are often used to launder money
ONGOING crime/fraud plus attorney services plus knowledge= Must withdraw
Make a flow/checklist for must withdraw under 1.16
check
what is money laundering
Concealing the location, source, ownership, or control of proceeds of a crime
what is 1.2(d) knowledge
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer KNOWS is criminal or fraudulent
how does 1.0(f) define knowlege
actual knowledge of the fact in question”, “may be inferred from the circumstances”
1.16(a)(4) has the 1.4(a)(5) stipulation - what does it say
a lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the rules or other law
in a 1.16(a)(4) must withdraw situaton via knowlege of crime/fraud Could A say that he did not know C was using A’s services to commit crime?
NO! must do all the necessary inquires, and the level of inquires depends on who your client is
1.16(b) governs when you MAY withdraw or delcine – what are the 7 situations – subject to 1.16(c)
(b)(1) any reason if no material adverse effect on client’s interest or if the client consents
(b)(2) ongoing crime/fraud+ attorney services + reasonable belief
(b)(3) past/completed fraud+ attorney services + knowledge
(b)(4) C takes action that A considers to be repugnant or with which A has a fundamental disagreement
(b)(5) the client substantially fails to fulfill an obligation to the attorney and has been warned that the attorney will withdraw unless it is fulfilled
(b)(6) If to continue the representation will impose an unreasonable financial burden on the attorney OR If the client has made the attorney’s work unreasonably difficult
(b)(7) If there is other good cause for withdrawal
what does 1.16(c) say
lawyer must notify/get permission from tribunal to withdraw EVEN WITH MANDTORY WITHDRAW
whiting v lacara – application of 1.16(c)
Whiting’s third attorney, Garrett Lacara, moved to withdraw twelve days before trial, citing various issues with Whiting.
Whiting said he would sue for malpractice if the attorney did not do the frivolous claim
Ie he either had to commit a rule 11 violation or get sued for malpractice
He was caught between a rule 11 violation and malpractice suit
The trial court denied the motion, and Lacara appealed.
May an attorney withdraw on the eve of trial only with the court’s consent upon showing good cause and satisfactory reasons that require the withdrawal?
An attorney may withdraw on the eve of trial only with the court’s consent upon showing good cause and satisfactory reasons that require the withdrawal.
All of this made it so impossible a situation that he must be permitted to withdraw
when dealing with a withdraw issue, what three things should you be thinking about
You need to consider when a lawyer MUST withdraw, when a lawyer CAN withdraw, and HOW a lawyer should withdraw if they need to
