Diligence and Candor, Control of Representation - June 9 Flashcards
In representing a client, must a lawyer give candid advice and use independent professional judgment? (Q)
Yes. In representing a client, a lawyer must give candid advice and use independent professional judgment. Although a lawyer may rightly wish to avoid upsetting a client, a lawyer must nonetheless be honest with the client and should not let a fear of upsetting the client interfere with the rendering of candid advice in the client’s best interests.
In advising a client, may a lawyer refer to moral, economic, social, and political factors that may be relevant to the client’s concerns? (Q)
Yes. In advising a client, a lawyer may refer to considerations beyond strictly legal advice, including moral, economic, social, and political factors that may be relevant to the client’s concerns. Though a lawyer may take a request for legal advice at face value and render purely legal advice in response, advice that considers other, nonlegal factors can often be more helpful to the client in understanding the practical effect or likely application of the law. This is especially true in dealing with clients who are not experienced in legal matters, and who therefore might not understand how the law can interact with other factors.
In advising a client, should a lawyer be willing to incorporate expertise from fields other than the law? (Q)
Yes. In advising a client, a lawyer should be willing to incorporate expertise from fields other than the law. At times, a competent lawyer should advise a client to consult a professional in another field (e.g., a psychiatrist or an accountant) if that person’s expertise will help a client to understand and achieve the goals of the representation. Moreover, if experts in other fields give conflicting recommendations to a client, a lawyer is often well-suited to evaluate these different opinions and recommend a course of action to the client in light of the applicable law.
A lawyer was representing a woman in a divorce. The lawyer believed that the woman was suffering from undiagnosed depression and that this condition was causing the woman to undervalue her own interests in the divorce settlement. The lawyer believed that the woman would benefit from psychological counseling to help her to better appreciate her own best interests.
Is it appropriate for the lawyer to suggest that the woman obtain psychological counseling? (Q)
Yes. The lawyer may appropriately suggest that the woman obtain psychological counseling. In a lawyer’s role as advisor, the lawyer may refer to considerations beyond strictly legal advice, including moral, economic, social, and political factors that may be relevant to a client’s concerns. Moreover, a lawyer may advise a client to consult nonlegal experts if this is something that a competent lawyer would recommend to help achieve the goals of the representation.
Here, the lawyer believed that the woman’s depression was causing the woman to undervalue her own best interests. A competent lawyer would recommend that the woman obtain assistance with her depression, because doing so might help the woman to achieve her legal objectives in the divorce. Thus, the lawyer may properly advise the woman to obtain psychological counseling.
In general, is a lawyer expected to give advice without being asked to do so by a client? (Q)
No. In general, a lawyer is not expected to give unsought or unsolicited advice to a client. A lawyer may nonetheless do so if the advice appears to be in the client’s best interests.
Moreover, in matters related to a representation, a lawyer’s duty to communicate with a client might require the lawyer to advise the client proactively about (1) matters that could adversely affect the client’s interests or (2) the availability of alternative dispute resolution if litigation appears likely.
May a lawyer provide an evaluation of a matter affecting a client for the use of someone other than the client? (Q)
Yes. A lawyer may provide an evaluation of a matter that affects a client for the use of someone other than the client, as long as the lawyer reasonably believes that the evaluation is compatible with other aspects of the lawyer’s relationship with the client. Some specific types of evaluations that a lawyer may prepare include: (1) information for the benefit of a third person, e.g., an opinion about title to a client’s property to give to a purchaser; (2) information required by a government agency, e.g., an opinion about the legality of securities issued by the client; or (3) an evaluation required by a third person, e.g., an opinion required by the purchaser of a client’s business.
Under what circumstances is a client’s informed consent required for a lawyer to provide an evaluation of a matter affecting the client for the use of someone other than the client? (Q)
A lawyer must obtain a client’s informed consent to provide an evaluation of a matter affecting the client for the use of someone else if the lawyer knows or reasonably should know that the evaluation is likely to have a material, adverse effect on the client’s interests. To obtain the client’s informed consent, the lawyer must adequately inform the client about the potential effects on the client’s interests if the lawyer provides the evaluation and the information that the evaluation will contain.
In general, if a lawyer investigates a person on behalf of a client, does the lawyer establish a client-lawyer relationship with the person who is investigated? (Q)
No. In general, if a lawyer investigates a person on behalf of a client, the lawyer does not establish a client-lawyer relationship with the person who is investigated. Rather, the lawyer’s client-lawyer relationship is with the party who retained the lawyer to perform the investigation. This is true even if the person being investigated agrees to cooperate in the investigation. In conducting an investigation, a lawyer should make clear to the person being investigated that a client-lawyer relationship does not exist.
A lawyer represented a client in its general business affairs. The client asked the lawyer to investigate a potential business partner and provide a report of his findings. The potential business partner was aware of the investigation and agreed to give the lawyer access to necessary documents and records. The lawyer agreed to conduct the investigation. Throughout the investigation, the lawyer was paid by the client and not by the potential business partner.
Does the lawyer have a client-lawyer relationship with the potential business partner? (Q)
No. The lawyer does not have a client-lawyer relationship with the potential business partner. A legal evaluation of a client’s affairs is distinct from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. The relevant question is whether the lawyer is retained by the person whose affairs are being investigated. If the lawyer is not retained by that person, then a client-lawyer relationship does not exist between that person and the lawyer.
Here, the potential business partner had not retained the lawyer to evaluate his affairs. Rather, the lawyer was investigating the potential business partner’s affairs on behalf of his client. Thus, there is no client-lawyer relationship between the lawyer and the potential business partner.
If a lawyer gives a third person an evaluation of a matter related to a client’s representation, is it possible that the lawyer will owe a legal duty to that third person as a result? (Q)
Yes. If a lawyer gives a third person an evaluation of a matter related to a client’s representation, it is possible that the lawyer will owe a legal duty to that third person as a result (e.g., the lawyer might take on a duty of care to the third person in preparing and presenting the evaluation). The Model Rules of Professional Conduct (MRPC) do not specify when this type of duty may arise. Instead, the existence of a duty will be a matter of the applicable law in the relevant jurisdiction. Thus, the lawyer must consult the applicable law and use her professional judgment to assess the duties that might arise.
If a lawyer performs an evaluation of a client’s matter for the benefit of a third party, may the client and the lawyer agree in advance on the scope of the evaluation? (Q)
Yes. If a lawyer performs an evaluation of a client’s matter for the benefit of a third party, the client and the lawyer may agree in advance on the scope of the evaluation. Questions of scope may include limits on the time available to the lawyer, the information to be accessed by the lawyer, or other factors. Any material limitations on the scope of the evaluation should be specified in the lawyer’s report of the evaluation.
If a lawyer evaluates a client’s matter for the benefit of a third party, is information relating to the evaluation generally protected by the lawyer’s duty of confidentiality? (Q)
Yes. If a lawyer performs an evaluation of a client’s matter for the benefit of a third party, information relating to the evaluation is generally protected by the lawyer’s duty of confidentiality. This duty prohibits the lawyer from revealing information pertaining to the representation of a client unless the disclosure is impliedly authorized to carry out the representation, the client gives informed consent, or the disclosure is otherwise permitted under the rules of professional conduct.
In the context of reports prepared for third parties, the disclosure of confidential information is sometimes impliedly authorized as part of the representation. However, the client’s informed consent will be required if the disclosure might adversely affect the client’s interests.
A lawyer represented a business that was engaged in the sale of securities. To effectuate the sale, the government required an opinion letter from the lawyer stating that the securities the business wanted to sell were legal. The business was aware of the opinion-letter requirement. The opinion letter posed no material risk to the client’s interests, and the preparation of these types of letters was a normal part of the client’s business.
May the lawyer provide this opinion letter without obtaining the client’s informed consent? (Q)
Yes. The lawyer may provide the letter without the client’s informed consent. A lawyer may provide an evaluation of a client’s matter for use by a third party. Evaluations are subject to a lawyer’s duty of confidentiality but may be impliedly authorized if necessary to carry out the representation. The client’s informed consent is generally not required unless the lawyer knows or should know that the information is likely to adversely affect the client’s interests.
Here, an opinion letter was necessary to carry out the lawyer’s representation of the client and was a routine part of the client’s business. Disclosure of the information would not have any adverse effect on the client. Thus, disclosure of the information was impliedly authorized, and the lawyer may provide the letter without the client’s informed consent.
A lawyer represented a business that was for sale. A prospective purchaser of the business asked for an evaluation of the business’s finances. The evaluation was necessary to complete the purchase of the business, and the business was aware that an evaluation of its finances would be required to effectuate the transaction. At the time, the business was under investigation by the Internal Revenue Service (IRS) for potential tax fraud. This information was not known to the public or to the prospective purchaser. The lawyer believed that disclosure of the investigation would harm the client’s interests in the potential sale. However, the information would have to be included in an evaluation to avoid providing false information to the prospective purchaser.
May the lawyer provide the evaluation to the prospective purchaser without getting the business’s informed consent? (Q)
No. The lawyer may not provide the evaluation without the business’s informed consent. A lawyer may perform an evaluation for use by third persons at the client’s direction or if impliedly authorized to do so to carry out the representation. However, information connected with an evaluation is generally protected by the lawyer’s duty of confidentiality. If any confidential information would have a material, adverse effect on the client, then the lawyer must obtain the client’s informed consent to the disclosure.
Here, the evaluation would have to include information about the tax-fraud investigation. However, this information would harm the client’s interests in the potential sale. Thus, the lawyer must obtain the client’s informed consent before preparing the evaluation and disclosing this information to the prospective purchaser.
If a lawyer is serving as a negotiator for a client, must the lawyer seek a result that is advantageous to the client while acting consistently with the requirement that the lawyer must maintain honest dealings with others? (Q)
Yes. If a lawyer is serving as a negotiator for a client, the lawyer must seek a result that is advantageous to the client. Nonetheless, even in negotiating, a lawyer must adhere to the duty of truthfulness and maintain honest dealings with others.
