FORMATION, TERMINATION, AND SCOPE OF A LAWYER-CLIENT RELATIONSHIP AND BASIC DUTIES TO CLIENTS Flashcards
HOW IS A LAWYERCLIENT RELATIONSHIP
FORMED?
- Express agreement.
- Implied agreement (the prospective client seeks legal
services, then reasonably believes a relationship exists
based on the lawyer’s actions). - Appointment by the court.
ACCEPTING APPOINTMENTS (court appointments)
ABA: A lawyer must not seek to avoid
appointment by a tribunal to
represent a person except for
good cause, such as:
(1) representing the client is likely to result in a violation of the RPC
or other law;
(2) representing the C is likely to result in an unreasonable financial burden on the L; or
(3) the client or the cause is so repugnant to the L as to be likely to impair the lawyer-client relationship or the lawyer’s ability to represent
the client.
CA: No counterpart, but L promises never to reject, for personal reasons, the cause of the defenseless or the oppressed.
PERMISSIVE WITHDRAWAL
ABA: L may withdraw in any of these:
1. Withdrawal can be accomplished without MATERIAL ADVERSE EFFECT on C’s interests. (ONLY ABA, NOT CA).
- C persists in a CRIMINAL/FRAUDULENT course of conduct involving L’s services.
- C has already used L’s services to perpetrate CRIME/FRAUD.
- C fails to fulfill a SUBSTANTIAL OBLIGATION to L, and has been given reasonable warning by L that L will withdraw if obligation isn’t fulfilled.
- Rep has been rendered unreasonably difficult by C.
- C insists on taking action that L considers repugnant/ or with which L has a fundamental disagmt. (ONLY ABA, NOT CA).
- Rep will result in an unreasonable FINANCIAL burden on the L. (ONLY ABA, NOT CA).
- OTHER good cause.
CA: Same, but
- Does not have ground allowing withdrawal if no MAE on C’s interests. Instead, withdrawal is allowed if C KNOWINGLY AND FREELY ASSENTS to termination of rep.
CA extra good cause: L unable to work with co-counsel and withdrawal would serve C’s ints. L’s mental/physical condition make it difficult to continue but not severe enough for mandatory withdrawal.
(these are good cause under ABA rules)
MANDATORY REJECTION & MANDATORY WITHDRAWAL
L MUST decline a rep or MUST withdraw from a rep if:
- Rep will result in VIOLATION of RPC or other LAW.
* includes when L insists on pursuing ilegal/unethical conduct after L has advised on legal consequences*
- L’s physical or mental condition SUBSTANTIALLY IMPAIRS the L’s ability to rep the C.
- L is DISCHARGED by C.
CA extra ground for mandatory:
- C is bringing an action, conducting a defense, asserting a position in litigiatino, or taking an appeal, WITHOUT PC and for the PURPOSE of harassing or maliciously injuring any person.
SALE OF A LAW PRACTICE
ABA:
* Entire practice, or entire FIELD of practice, must be sold to 1 or more Ls or firms.
* Seller must CEASE TO ENGAGE in private practice of law, or in the sole field of practice, in the geo area or js where practice ahs been conducted (except L can work in-house at charity).
* WRITTEN NOTICE must be given to L’s clients regarding sale, the C’s right to retain other counsel and take possession of their files, and the fact that consent is presumed if C takes no action within 90 days.
* C’s FEEs must not be INCREASED SOLELY bc of the sale.
CA: Different rule.
* ALL OR SUBSTANTIALLY ALL of the practice mut be sold. L cannot sell JUST A FIELD of practice.
* Seller is NOT PROHIBITED from PRACTICING LAW following the sale. (but, parties to K may choose to include this as a term).
* C’s CI must not be disclosed to a nonL in connection with the sale.
* Seller must obtain each C’s written consent before C’s matter is transferred. If reasonable effrots have been amde but no response to notice within 90 days, consent presumed .
WHEN C HAS FINAL DECISION (when L has to go with C’s decision)
L MUST abide by C’s decision as to:
* Whether to accept SETTLEMENT offer
* What PLEA to enter
* Whether to waive JURY TRIAL in criminal case
* Whether C will TESTIFY in CRIMINAL case
ASSISTING C in CRIMINAL OR FRAUDULENT C
ABA: L must NOT counsel or assist C in ILLEGAL or FRAUDULENT conduct.
BUT, L may ADVISE the C of the LEGAL CONSEQUENCES of a proposed course of action. If the C insists on pursuing ILLEGAL or Unethical course of conduct, L MUST withdraw.
CA: Same rule, but also prohibits L from assisting C in conduct that VIOLATES a COURT RULE or ruling.
Also in CA, if CA law conflcits with fed/tribal law, L must inform C about the related law.
LIMITING SCOPE OF REPRESENTATION
Both: L may REASONABLY limit the scope of a rep with the C’s INFORMED CONSENT.
ORGANIZATIONAL CLIENTS
(L’s duty)
(what if L learns of constitutient violation)
L represents and owes duty to the org, not the constituents.
L must explain this to constituents whenever org’s interests are ADVERSE to those of the constituent with whom L is dealing with.
ABA: If the L learns that a person associated with the org has acted, or is about to act, in a way that MIGHT be IMPUTED to the org, the L MUST proceed as reasonably necessary to protect Org’s interests. This usually means reporting up to a higher authority in the org.
If HIGHEST AUTHORITY fails to act, L MAY report to appropriate persons OUTSIDE of the org to the EXTENT NECESSARY to PREVENT SUBSTANTIAL INJURY to the org.
(supersedes duty of Confidentiality)
CA: does not authorize OUTSIDE reporting, L may ONLY disclose the org’s CI if an exception to duty of confidentiality applies.
BUT, L MAY WITHDRAW if highest authority fails to act.
CLIENT WITH DIMINISHED CAPACITY
ABA RULE ONLY!
While rep’ing a C with diminished capacity (age, disability, etc), L generally MUST maintain a normal LC relationship.
BUT, L may take PROTECTIVE ACTION (appointing guardian) if they reasonably believe C cannot protect themsevles from SUBSTANTIAL HARM.
In taking prot’ action, L has IMPLIED AUTHORITY to reveal the C’s CI to the xtent necessary to protect C.
CA: No counterpart rule.
COMPETENCE & DILIGENCE
COMPETENCE:
When repping C, L must act competently - with the legal KNOWLEDGE and SKILL reasonably necessary for the rep.
A L may BECOME competent through prep’ or by consulting with other Ls.
A L may also act in an EMERGENCY situation.
DILIGENCE:
L also must act with reasonable dilgence in repping a C (acting in C’s interests, controlling workload, etc).
CA - for BOTH:
L Must NOT INTENTIONALLY, RECKLESSLY, REPEATEDLY, or with GROSS NEGLIGENCE fail to perform leg’ services with reasonable competence and dilgience. Thus, L generally is NOT subject to discipline under either comp/dil rule for a minor, isolated act.
CA competence standard also includes mental, emotional, and physical ability reasonably necessary to perform the service.
