Lawyer-Client Relationship Flashcards
HOW IS A LAWYER-CLIENT 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.
PRO BONO SERVICE
All lawyers are encouraged to provide pro bono service (the recommended amount is 50 hours per year) and to contribute financially to organizations that provide legal services to indigent individuals. However, these goals are aspirational; a lawyer is not subject to discipline for failing to provide pro bono services.
ACCEPTING 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 client is likely to result in an unreasonable financial burden on the lawyer; or (3) the client or the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relationship or the lawyer’s ability to represent the client.
CA: No counterpart. However, in taking the California Attorney’s Oath, each lawyer promises never to reject, for personal reasons, the cause of the defenseless or the oppressed.
MANDATORY REJECTION OR WITHDRAWAL
ABA:
(1) The representation will result in violation of the RPC or other law.
(2) The lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client.
(3) The lawyer is discharged by the client.
CA: Same as above and additional
(4) The client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.
PERMISSIVE WITHDRAWAL
(1) Withdrawal can be accomplished without material adverse effect on the client’s interests.
(2) The client persists in a criminal or fraudulent course of action involving the lawyer’s services.
(3) The client has already used the lawyer’s services to perpetrate a crime or fraud.
(4) The client fails substantially to fulfill an obligation to the lawyer (for example, paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled.
(5) The representation has been rendered unreasonably difficult by the client.
(6) The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
(7) The representation will result in an unreasonable financial burden on the lawyer.
(8) There is other good cause for withdrawal.
SALE OF A LAW PRACTICE (ABA)
(1) must sell the entire practice or the entire field of practice
(2) seller must cease to engage in the private practice of law or in the sold field of practice in the same jurisdiction
(3) must give written notice to sellers clients of the sale stating (a) clients rights to retain other counsel and take their files, and (b) that consent to the transfer of the clients files is presumed after 90 days
(4) clients fees must not be increased solely because of the sale
SALE OF A LAW PRACTICE (CA)
(1) Must sell “all or substantially all” of the practice, not just a field
(2) client’s confidential info must not be disclosed to a non lawyer in connection with the sale
(3) seller must obtain client’s written consent unless reasonable efforts have been made to locate the client but unsuccessful
(4) seller is prohibited from practicing law after the sale
WHEN CLIENT HAS FINAL DECISION
A lawyer must abide by the client’s decisions 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 FRADULENT CONDUCT
ABA: lawyer can’t assist the client in illegal/fraudulent conduct but can advise the client of the legal consequences of the action. If client insists on pursing the act, the lawyer must withdraw.
CA: same as ABA but also prohibits a lawyer from assisting a client in conduct that violates a court rule or ruling
LIMITING SCOPE OF REPRESENTATION
A lawyer may reasonably limit the scope of a representation with the client’s informed consent.
ORGANIZATIONAL CLIENTS
ABA:
(1) lawyer represents and owes a duty to the organization, not its constituents.
(2) If the lawyer learns that a person associated with the org has acted/will act in a way that could harm the org, the lawyer must proceed as reasonably necessary to protect the orgs interests
(3) lawyer can report to highest authority of the org, then if highest authority fails to act, can report to outside of the org to the extent necessary to prevent substantial injury to the org
CA: Can’t report to authority outside the org but can withdrawal from case
CLIENT WITH DIMINISHED CAPACITY
ABA: a lawyer generally must maintain a normal lawyer-client relationship. However, the lawyer may take protective action if they reasonably believe the client cannot protect themselves from substantial harm.
CA: California does not have a counterpart rule.
COMPETENCE AND DILIGENCE
ABA:
(1) When representing a client, a lawyer must act competently; that is, with the legal knowledge and skill reasonably necessary for the representation.
(2) A lawyer may become competent through preparation or by consulting with other lawyers. A lawyer may also act in an emergency situation.
CA:
(1) a lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence or diligence.
(2) Thus, a California lawyer generally is not subject to discipline under the competence or diligence rules for a minor, isolated act.
(3) standard for competence additionally includes the mental, emotional, and physical ability reasonably necessary to perform the service.
COMMUNICATION: KEEPING THE CLIENT INFORMED
(1) Explain the matter to the client to the extent necessary to permit the client to make informed decisions.
(2) Keep the client reasonably informed about the status of the matter; this requires informing the client of all significant developments.
(3) Comply with all reasonable requests for information from the client.
COMMUNICATION: DISCLOSURE OF LACK OF LIABILITY INSURANCE (CALIFORNIA ONLY)
(1) When a lawyer does not have professional liability insurance, they must inform the client in writing at the time of engagement.
(2) If the lawyer ceases to have professional liability insurance during the representation, they must inform the client within 30 days.
(3) Disclosure is not required when (A) the representation will not exceed four hours; (B) the lawyer is acting within their direct employment as a government lawyer or as in-house counsel; or (C) the lawyer is rendering legal services in an emergency.
