Formation, Termination, and Scope of a Lawyer-Client Relationship Flashcards
How does a lawyer-client relationship arise?
- express agreement
- implied agreement (this is based on the intent and conduct of the parties; i.e., if a person seeks legal advice)
- a court’s appointment of a lawyer to represent client
Lawyers are generally free to refuse service to any person for any reason
Pro bono work
Pro bono work is encouraged but not required under the rules of prof. conduct (i.e., if fail to reach 50 hours/year, lawyer will not be subject to discipline)
Refusing court appointments
A lawyer must not seek to avoid appointment by a tribunal except for good cause, which includes:
1. representing the client will result in a violation of the rules of professional conduct
2. unreasonable financial burden on the lawyer
3. the client or cause is so repugnant that lawyer’s work will be impaired
California does not have a rule concerning court appointments; however, each CA lawyer promises to never reject, for personal reasons, the cause of a defenseless or oppressed person.
Mandatory withdrawal
California exception included
A lawyer must withdraw in the following situations:
1. the representation will result in a violation of the law or the professional conduct rules
2. the lawyer’s physical or mental condition substantially impairs his ability to represent the client
3. the lawyer is discharged by the client
California ruled add another mandatory ground: when the client is bringing an action without probable cause and for the purpose of harrassing or maliciously injurying the defendant.
Permissive withdrawal (ABA rules)
A lawyer is permitted to withdraw if it can be accomplished without a materially adverse effect on the client’s interest, or where there is a good cause to do so.
Examples of when a lawyer can permissively withdraw (Federal law)
- The client persists in a criminal or fraudulent course of action involving the lawyer’s services
- The client has already used the lawyer’s services to commit crime or fraud
- The client fails to fulfill an obligation to the lawyer, and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled
- Representation has been rendered unreasonably difficult
- The client insists on taking an action the lawyer finds repugnant
- Representation will result in an unreasonable financial burden on the lawyer
Permissive withdrawal in California
the CA rule is the same as the federal rule except:
1. Withdrawal is allowed only if the client knowingly and freely assents to the termination of representation
2. There is no “repugnant action” element*
3. There is no “financial burden” element*
* included in Fed. ABA rules.
Must a lawyer continue to represent a client when ordered by a court?
Yes, even if there is good cause for terminating the representation
What must a lawyer do upon termination of representation?
The lawyer must take steps to the extent reasonably practicable to protect a client’s interest, such as:
1. giving reasonable notice to the client;
2. allowing time for employment of other counsel;
3. surrendering papers or property to which the client is entitled; and
4. refunding any unearned advance payments.
What are the requirements for the sale of a law practice?
California exception included
The sale of a law practice is permitted subject to:
1. the sale of the entire practice or field
2. the seller ceasing to engage in the private practice of law in the geographic area or jurisdiction where the practice has been conducted
3. the seller providing her clients with written notice (includes notice that they may retain other counsel, take possession of their files, and consent to transfer will be presumed if no action taken in 90 days)
4. no increases to the client fees solely because of the sale
In CA: (i) seller cannot sell just a field; (ii) a client’s information must not be disclosed to a nonlawyer; (iii) the seller must generally obtain each client’s written consent before matter is transferred; (iv) the seller is not prohibited from practicing law after the sale.
When does the client have the final decision?
A lawyer must abide by the client’s decision as to the following:
1. whether to accept a settlement offer
2. what plea to enter
3. whether to waive a jury trial in a criminal case
4. whether the client will testify in a criminal case
What happens if the client asks lawyer about conducting illegal conduct?
California exception included
A lawyer must not counsel or assist a client in illegal or fraudulent conduct. The lawyer may, however, advise the client as to the possible consequences of illegal actions are taken.
In CA: if California law conflicts with federal or tribal law (i..e, marijuana law), the lawyer must inform the client about the related federal or tribal policy.
Limiting scope of representation
A lawyer MAY limit the scope of the representation if: (i) the limitation is reasonable under the circumstances; and (ii) the client gives informed consent
To whom does a lawyer owe a duty when representing a corporation?
The lawyer owes a duty to the organization, not the people associated with the organization. The lawyer must explain this whenever the organization’s interests are adverse to those of the person at the organization with whom the lawyer is dealing.
How does a lawyer protect an organization’s interests?
If a lawyer learned that a person associated with the organization has acted in a way that violates a duty to the organization or law in a way that might be imputed to the org., the lawyer must protect the organization’s interests by reporting the matter to a higher authority in the organization.
