Formation and Termination of Relationship Flashcards
Three ways a lawyer-client relationship arises
Express agreement of the parties
Implied agreement, based on the intent and conduct of the parties (usually, this happens when a person seeks legal services and the lawyer fails to clearly decline despite knowing that the person is reasonably relying on them to provide the services)
A court’s appointment of a lawyer to represent a client
Accepting/Refusing Pro Bono Work
Pro bono work is encouraged but not required under the rules of professional conduct (suggested is 50 hours per year, but lawyer will not be subject to discipline if they don’t do this).
However, a lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause
Mandatory Rejection or Withdrawal
A lawyer must decline to take on a representation, or must withdraw from representation, if:
- The representation will result in a violation of the rules of professional conduct or other law
- The lawyer’s physical or mental condition substantially impairs their ability to represent the client
- The lawyer is discharged by the client
CA ADDS: When the client is bringing an action without probable cause and for the purpose of harassing or maliciously injuring any person
Permissive Withdrawal
A lawyer is permitted to withdraw if it can be accomplished without material adverse effect on the client’s interests, or where there is good cause to do so.
CA: withdrawal is allowed if the client knowingly and freely assents to termination of the representation.
NOTE: When ordered to do so by a court, a lawyer must continue representation even if there is good cause for terminating it
Protecting Client’s Interests on Termination
A lawyer must take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any unearned advance payments.
Sale of a Law Practice (ABA)
Permitted subject to the following requirements:
1) The entire practice (or the entire field of practice) must be sold to another lawyer(s) or firm(s).
2) The seller must cease to engage in the private practice of law in the geographic area or jurisdiction where the practice has been conducted (but may work as in-house counsel or for a charitable organization).
3) Written notice must be given to the seller’s clients regarding (i) the sale, (ii) the clients’ right to retain other counsel and to take possession of their files, and (iii) the fact that consent to the transfer of the clients’ files will be presumed if a client takes no action within 90 days of receipt of the notice.
NOTE: Clients’ fees must not be increased solely because of the sale.
Sale of a Law Practice (CA)
1) “All or substantially all” of the practice must be sold (cannot sell just a field of their law practice, unlike ABA rules)
2) A client’s confidential information must not be disclosed to a nonlawyer in connection with the sale.
3) The seller generally must obtain each client’s written consent before the client’s matter is transferred. However, if reasonable efforts have been made to locate the client and there is no response within 90 days, the client’s consent is presumed.
4) The seller is not prohibited from practicing law following the sale, but this may be included as a term in the sale agreement.
When Does the Client have Final Decision?
A lawyer must abide by the client’s decisions (after consulting with the client) as to the following:
* Whether to accept a settlement offer
* What plea to enter
* Whether to waive a jury trial in a criminal case
* Whether the client will testify in a criminal case
Assisting Client in Criminal or Fraudulent Conduct
A lawyer must not counsel or assist the client in illegal or fraudulent conduct, but the lawyer MAY advise the client of the legal consequences of a proposed course of action.
If the client insists on pursuing an illegal or unethical course of conduct, the lawyer must withdraw.
CA: Also prohibits a lawyer from assisting a client in conduct that violates a court rule or ruling.
CA: Lawyer must also inform the client about related federal or tribal laws that conflict with California law (e.g., marijuana laws)
Limiting Scope of Representation
A lawyer may limit the scope of the representation if (1) the limitation is reasonable under the circumstances, and (2) the client gives informed consent.
Reasonable Limitation: Lawyer and client may agree that the lawyer will handle only certain aspects of the matter for the client.
Not reasonable: If a client tells the lawyer to research an issue and says “just do whatever you can in one hour.” If the lawyer knows that they would be unable to provide the client with a helpful answer after just one hour of work, it would not be reasonable to limit the scope.
Lawyer Representing an Organization
A lawyer who represents an organization must act in the best interest of the organization.
The lawyer represents and owes a duty to the organization, not to the people associated with the organization.
The lawyer must explain this duty whenever the organization’s interests are adverse to those of the person at the organization with whom the lawyer is dealing.
What should a Lawyer do if they learn that an employee is harming/ is about to harm the organization?
If the lawyer learns facts that would cause a reasonable lawyer to conclude that someone associated with the organization is engaged in an action that is a violation of a legal obligation to the organization, and if the violation is likely to result in substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization.
If the highest authority of the organization fails to take timely and appropriate action, the ABA rules permit outside reporting to the extent reasonably necessary to prevent substantial injury to the organization.
CA: Prohibits outside reporting unless an exception to the duty of confidentiality applies.
Representing Clients with Diminished Capacity
While representing a client with diminished capacity, a lawyer generally must maintain a normal lawyer-client relationship. However, the lawyer is permitted to take protective action, such as appointing a guardian, if they reasonably believe the client cannot protect themselves from substantial harm.
The lawyer has implied authority to reveal confidential information to the extent necessary to protect the client.
CA: Does not have a rule concerning clients with diminished capacity.
Duty of Competence to Clients
A lawyer must act competently when representing a client. This means acting with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
CA: Also recognizes mental, emotional, and physical ability as part of competence.
What can the lawyer do if they are not presently competent to represent the client?
If a lawyer doesn’t know the law, they must decline to take on the representation UBLESS they can (1) learn it without undue expense or delay to the client; or (2) consult with a lawyer who is competent in the area.
NOTE: A lawyer who lacks competence may act for a client in an emergency situation.
