NY Prof Resp - Lawyer-Client Relationship Flashcards
DECISION MAKING IN THE LAWYER-CLIENT RELATIONSHIP
Who is empowered to make decisions in the lawyer-client relationship?
CLIENT DECISIONS: those of substantive legal import
-commencing an action, settlement, plea in a criminal case, appeal, electing a jury trial or a bench trial, testifying in a criminal case (lawyer must communicate with the client so that he can make these decisions)
ATTORNEY’S DECISIONS: strategy, procedure and tactics
e.g. discovery methods to use, granting adjournments that do not prejudice the rights of a client
What do you you if the client loses the ability to make a clear decision or is a minor?
You have a guardian appointed for the client, and then it is the guardian who makes the final decisions
In NY, an attorney can take reasonably necessary protective action and seek to have a guardian appointed for a client if:
DHA “Donny Has Aids”
(1) the client has DIMINISHED capacity
(2) the client is at risk of substantial physical, financial or other HARM and
(3) client cannot ADEQUATELY act in her own interests
ACCEPTING AND WITHDRAWING FROM REPRESENTATION
Lawyers have a right to reject all cases although they SHOULD do their fair share of pro bono work
When MUST an attorney withdraw from representation?
VSFH - Villains Strive For Hell
(1) the lawyer KNOWS the representation will result in a VIOLATION of the rules of law (e.g. client wants you to help him sell business via fraud, or client tells you he is gonna perjure himself)
(2) A lawyer SUFFERS physical or mental disability (most common is substance abuse)
(3) Client FIRES the lawyer (for any reason or no reason)
(4) Lawyer KNOWS the client is taking steps SOLELY to HARASS or maliciously injure another (but only if SOLELY)
When MAY an attorney withdraw from representation?
FRDCVIFFM - Franklin Roosevelt Displayed Civic Virtue In Fairly Famous Moments
(1) client insists on presenting a FRIVOLOUS claim or defense
(2) Client persists in a course of action involving the lawyer’s services that the lawyer REASONABLY BELIEVES is criminal or fraudulent
(3) Client DELIBERATELY DISREGARDS an agreement or obligation to the lawyer as to expenses or fees (e.g. has $ but refuses to pay)
(4) Client uses lawyer’s services to perpetrate a CRIME OR FRAUD
(5) Lawyer’s continued employment is likely to result in the VIOLATION of the law or disciplinary rules
(6) Lawyer’s INABILITY to work with co-counsel indicates that the best interests of the client are served by withdrawal
(7) Client insists on taking action with which the lawyer has a FUNDAMENTAL DISAGREEMENT (“fundamentally Disgrees” is narrowly defined)
(8) Client FAILS to cooperate in the representation
(9) Withdrawal can be accomplished without MATERIAL ADVERSE EFFECT on the client
COMPETENCE: A lawyer should take only those cases he or she is “competent” to hands. Competence includes:
(1) physical and mental competence
(2) competence in the substantive law
(3) having sufficient time to devote to the matter
How can a lawyer overcome a lack of competence?
by (1) associating with a competent lawyer, or (2) becoming competent in the area
A lawyer can limit the scope of representation of a client if:
(1) the limitation is reasonable and
(2) the client gives informed consent
