Formation & Termination of Attorney-Client Relationships Flashcards
What rules govern formation of A-C relationship?
Principles of substantive law outside of the ABA Rules govern formation
3 ways for A-C relationship to form
(1) Person manifests intent to L for L to provide services + L manifests consent to do so
(2) Person manifests intent to L for L to provide services + L fails to manifest lack of consent (L knows or reasonably should know that person reasonably relies on L to provide services)
(3) L appointed by ct (L can only refuse for “good cause,” but ct can say “too bad, sweetie”)
What constitutes “good cause” when getting out of a ct-appted client?
VFR –> Vicious Farts Reek
(1) Representing C is likely to result in VIOLATION of the Rules of Professional Conduct or other law;
(2) Representing C is likely to result in an unreasonable FINANCIAL BURDEN on the lawyer; or
(3) The client or the cause is so REPUGNANT to the L as to be likely to impair the client-lawyer relationship or the L’s ability to represent the client.
How is authority allocated between the Lawyer and Client?
(a) Subject to (c) and (d), L shall abide by C’s decisions concerning:
-Objectives of representation;
-Whether to settle a matter;
In a criminal case:
-A plea to be entered;
-Whether to waive a jury trial;
-Whether C will testify; and
-Admission of guilt during the sentencing phase of a capital trial.
L may take action on behalf of C as is impliedly authorized.
Limitations –>
(c) L may limit the scope of representation if:
(1) Limitation is reasonable under the circumstances; and (2) C gives informed consent.
(d) L shall not counsel C to engage, or assist C in conduct L knows is criminal/fraudulent.
What responsibilities does L owe to members of an organization?
A lawyer who represents an organization doesn’t thereby represent the members but may have a duty to them
What is L supposed to do if L finds out C expects L to act contrary to the Rules of PC?
Lawyer needs to CONSULT client on limits of lawyer’s conduct
What duties does L owe to prospective C?
Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
How can L that received disqualifying info from prospective client proceed w/ representation?
If:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing;
OR
(2) L who received the information (a) took reasonable measures to AVOID EXPOSURE to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (b) the disqualified lawyer is TIMELY SCREENED from any participation in the matter and is apportioned no part of the fee therefrom; and (c) WRITTEN NOTICE is promptly given to the prospective client.
Who is a prospective client?
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
NOT –>
A person who communicates info unilaterally to L, without any reasonable expectation that L is willing to form a C-L relationship
Is L prohibited from representing C w/ interests adverse to a prospective C in the same or substantially related matter?
NO, unless L received info from the prospective C that could be SIGNIFICANTLY HARMFUL if used in the matter
What are the 3 ways methods of A-C formation under IMPLIED formation?
Agency (manifesting consent)
Tort (reasonable person would rely)
K (legal advice after request)
When MUST Ls decline or terminate representation?
VCFCF - Very Citrus Flavored Cut Fruit
(1) when L knows representation will result in the representation will result in VIOLATION of the rules of professional conduct or other law;
(2) L’s physical or mental CONDITION materially impairs the lawyer’s ability to represent the client;
(3) the lawyer is FIRED; or
(4) C prospective C seeks to use or persists in using the lawyer’s services to commit or further a CRIME or FRAUD, despite the L’s discussion pursuant to 1.2(d) and 1.4(a)(5) regarding the limitations on L assisting with the proposed conduct.
(NOTE → must consult in this situation; L not obliged to decline or withdraw just bc C suggests breaking law)
When MAY Ls decline or terminate representation?
MR FOWUR
(1) withdrawal can be accomplished without MATERIAL adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer REASONABLY BELIEVES (doesn’t equate to knowledge) is criminal or fraudulent;
(3) the representation will result in an unreasonable FINANCIAL BURDEN on the lawyer or has been rendered UNREASONABLY DIFFICULT by the client;
(4) OTHER good cause;
(5) C won’t pay L even after L WARNED C that non-payment results in withdrawal;
(6) the client has USED the lawyer’s services to perpetrate a crime or fraud;
or
(7) the client insists upon taking action that the lawyer considers REPUGNANT or with which the lawyer has a fundamental disagreement.
When L MUST NOT decline or terminate representation?
When ordered by tribunal to represent C
L shall continue rep notwithstanding good cause for terminating → even if it means violating 1.16(a)
When can L take protective action with a C?
L may take reasonably necessary protective action when L reasonably believes:
(1) C has diminished capacity,
(2) C is at risk of substantial physical, financial or other harm, AND
(3) C cannot adequately act in own best interest.
