duties and bounds of lawyer's representation to clients

Question 1

basic duties to client

Answer 1

CLIENTS LOVE FIERCE COUNSEL

Confidentiality

Loyalty

Financial responsibility

Competence

PLUS:
Diligence
Communication

Question 2

duties to entities other than your client (court, adversaries, legal profession)

Answer 2

COURTS FEEL DIFFERENTLY

Candor

fairness

dignity and decorum

Question 3

duty of competence

Answer 3

(1) lawyer must act competently, which means acting with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

(2) keeping up with changes in the law and its practice

(3) if lawyer does not know the law, they must decline to take on the representation unless they can
– A: learn it without undue expense or delay to the client
or
–B: consult with lawyer who is competent in the area

exception: a lawyer who lacks competence may act for a client in emergency situation

(4) mandatory CLE learning - 12 hours per year

Question 4

penalties for violating duty of competence

Answer 4

(1) malpractice lawsuit [client must prove breach of duty of care]

(2) discipline by the Bar

(3) disqualification from a litigated matter

Question 5

what is the duty of diligence

Answer 5

(1) L acts with reasonable diligence and promptness in representing a client (control work load, zealous advocacy)

(2) see matters through to completion, and may not intentionally fail to complete representation with client

(3) cannot intentionally prejudice the client or damage him

Question 6

duty of communication

Answer 6

(1) explain the matter to the client so that client may make an informed decision

(2) inform client of all facts pertinent to the matter and communications from other parties that may significantly affect the resolution of the matter

(3) keep client reasonably informed of status of the matter and comply with reasonable requests for info from client

PLEAS and SETTLEMENTS:
– notify of plea bargains or offers to settle, unless client indicated prior that that proposal is not acceptable or authorized attorney to accept or reject

Question 7

when may lawyer delay transmission of info to client?

Answer 7

when transmission would make client react imprudently

cannot withhold forever, must eventually reveal

Question 8

must informed consent be in writing by client?

Answer 8

typically no - unless stated otherwise, oral consent is fine

and, when consent must be “memorialized” or “confirmed” in writing, it is usually ok for lawyer to memorialize it or confirm it

Question 9

duty of confidentiality

– scope
– timing

Answer 9

SCOPE:

A lawyer must not reveal:

(1) information protected by AC privilege

(2) information gained in professional relationship from ANY source IF (a) client has requested it be held confidential OR (b) disclosing it would be embarrassing or detrimental to the client

A lawyer must take affirmative acts to:
(1) take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, client’s confidential information

TIMING:
information gained during consultations with prospective clients, even when lawyer is not hired, and continues after relationship is terminated and after client has died

Question 10

exceptions to duty of confidentiality

Answer 10

A lawyer may disclose a client’s confidential information only to the extent reasonably necessary to meet the exceptions

MANDATORY EXCEPTIONS
(1) lawyer must promptly reveal stated intention of client to commit a crime, and info necessary to prevent it, when crime is reasonably certain to result in death or serious bodily injury or financial harm
[first advise client that he will have to disclose and tell him not to do it] UNLESS that crime is perjury

(2) reporting attorney misconduct with client’s consent after consultation with the client

PERMISSIVE EXCEPTIONS
(1) consent or implied authority [ex: sharing info with other member of firm]

(2) prevent death or substantial bodily injury
[no crime involved or person committing crime not the client]

(3) reveal client’s fraud

(4) defend self against or establish actual claim against client in proceeding against the client or in which client was involved
(malpractice, disciplinary action against lawyer involving client, client refuses to pay lawyer, etc.)

(5) lawyer prepping for her own death, disability or incapacity

(6) bookkeeping or office management [accounting, data processing, use due care]

(7) comply with court order to disclose info about client [candor to court supersedes confidentiality]

Question 11

exceptions to duty of confidentiality

Question 12

what is AC privilege

Answer 12

protects communications between lawyer and client and their agents made during the professional relationship

covers confidential communications between A and C that pertain to lawful legal services

[confidentiality applies to all types of information and information from any source when client asks that it be held confidential or disclosure would be embarrassing]

Question 13

how to deal with client’s stated intention to commit perjury

Question 14

scope of representation

Answer 14

lawyer may limit scope of representation if client consents after consultation

Question 15

what actions are permitted regarding assisting client in criminal or fraudulent conduct

Answer 15

A lawyer must not counsel a client to commit criminal or fraudulent conduct or assist in client’s perpetration of that conduct.

The following actions ARE permitted, however:

(1) explaining legal consequences of the action

(2) helping client make good faith effort to test the validity, scope, meaning of the applicable law

(3) counseling the client on proposed conduct that is expressly permitted by VA law or another’s state’s law but conflicts with federal law, provided the lawyer tells client about consequences under federal law

Question 16

allocation of authority to lawyer to make decisions

Answer 16

general rules is that lawyer must consult with client on all matters and must abide by client’s decisions regarding the objectives of the representation.

lawyer must consult with client about how objectives will be accomplished but lawyer has control of strategic considerations

Question 17

how to deal with representation of an organization

Answer 17

(1) protect the organization’s interests, not the employees interests (duty is to organization) — the rules of professional conduct provide that a lawyer is to proceed in the best interests of the corporation when an officer of the corporation has engaged in conduct that is a violation of a legal obligation to the corporation or a violation of law that might be imputed to the corporation and is likely to result in substantial injury to the organization.

An officer’s misconduct may be imputed to the organization

(2) if highest authority in organization fails to act upon a clear violation of law that is likely to result in substantial injury to the org, lawyer may resign or decline to represent the organization

(3) acting in org’s best interests may require lawyer to disclose to board of directors illegal activity that may be imputed to the organization

(4) does NOT authorize outside reporting but lawyer could disclose org’s info in acc with exception to duty of confidentiality which requires disclosure to prevent crime that is reasonably certain to result in substantial financial injury [but see securities lawyers]

Question 18

special duty of securities lawyer

Answer 18

federal law governs securities lawyers

reporting UP to the CEO or chief legal officer is MANDATORY

if all else fails, lawyer may disclose matter to SEC without client consent if reasonably necessary to prevent injury to the org or its investors, to rectify financial injury from a violation that involved lawyer’s services, or prevent client form committing perjury

Question 19

duty of loyalty

Answer 19

see conflicts of interest chapter