Performance of Attorney-Client Relationship Flashcards
Exceptions to attorney-client evidentiary privilege
- Crime fraud exemption: may be forced to disclose to authorities if services were sought to enable or aid to commit a crime
- Breach of duty by a lawyer exemption: bringing action against an atty opens up confidential communications
- Joint Clients exemption: there is no confidentiality in multiparty representation
- Others: document attested by a lawyer, or for communication where parties claim through the deceased
Attorney-Client Confidentiality
General definition and applicability
Applies to:
- Communication
- between privileged persons
- in confidence
- for the purpose of obtaining or providing legal assistance
Attorney-Client Confidentiality
Permissive disclosure of confidential information (excpetions)
- Prevent reasonably certain death or substantial bodily harm.
- Prevent client from committing crime or fraud reasonably certain to result in substantial financial harm and for which the client is using lawyer’s services
- Prevent, mitigate, or rectify substantial injury to financial interests
- Secure legal advice about compliance with Rules
- Establish claim or defense in dispute between lawyer and client;
- To comply with law
- To detect conflicts of interest for change of employment
Conflict of Interest
When does a concurrent conflict of interest exist?
- Representation of one client will be directly adverse OR
- Representation of one or more clients will be materially limited by responsibilities to:
- This client and another client;
- This client and a former client;
- This client and a third person; or
- Lawyer’s personal interest
When does a conflict of interest exist?
(applies to current conflicts, former client conflicts, and joint representation)
Representation of one client will be directly adverse OR
Representation of one or more clients will be materially limited by responsibilities to:
(1) This client and another client;
(2) This client and a former client;
(3) This client and a third person; or
(4) Lawyer’s personal interest
Conflict of Interest
When may a lawyer represent a client notwithstanding a current conflict?
- Reasonably believes can still provide competent and diligent representation to each (measured both objectively and subjectively)
- Not prohibited by law;
- Representation doesn’t involve assertion of claim by one client against another in the same case (adverse claims); AND
-
Client gives informed consent, confirmed in writing.
- evaluated at beginning and then monitored for changes in parties’ goals, positions on facts/law, opportunities for settlement or other resolution
What is “informed consent” regarding conflicts?
- Must disclose circumstances giving rise to conflict and
- Include description of foreseeable adverse effects.
- When potential conflict arises from joint representation, disclosure should also include fact that no atty-client priv exists between joint clients.
- Must be in writing: either 1) client executes writing or 2) lawyer promptly records and transmits confirmation to client after oral consent.
Requirements for client’s advance waivers for future conflics:
- More likely to be valid if comprehensive and specific - explains types of future representations that might arise and actual and reasonably foreseeable adverse consequences.
- Particularly true when independently represented by other counsel
- General and open-ended are ineffective - client l_ikely did not understand material risks_
- Sophisticated/unsophisticated clients are handled differently; how likely are they to comprehend risks?
Conflict of Interest: Conflicts with former clients
Laywer shall not represent a current client:
- in the same or substantially related matter adverse to a former client
- UNLESS the client gives written informed consent.
“Substantially related” = when work performed is same, or info obtained in course of representation will be involved, unless publicly known
Conflicts of interest in joint representation: factors to consider
Representation of joint parties may be a “material limitation” for attorney’s ability to represent all equally.
Factors to consider:
- the necessity of contested litigation
- clients’ ability to understand the risks and benefits of the common representation: depends on the sophistication, relative economic power of client
- whether the interest of any client will be materially prejudiced if the representation is unsuccessful: what are the consequences of any loss of confidentiality?
- whether the lawyer can conduct the representation impartially: does the atty already have a relationship with one of the parties?
Restrictions on lawyer’s business transactions with client
A lawyer cannot enter into business transaction UNLESS:
- Fair and reasonable to client; fully disclosed, in writing, and client must understand;
- Client is advised in writing of desirability of seeking independent counsel
- Client gives written informed consent
- Also subject to1.5(a) fee reasonability analysis
Lawyer solicitation of gifts
A lawyer (not related to client) may not
- Solicit substantial gift from client (including testamentary gift)
- prepare instrument (including will) giving gift to lawyer
Financial Assistance to Client
Non-indengent client: may advance court costs and expenses of litigation - but only where fee agreement includes repayment of contingent matters
Indigent clients: may pay court costs and expenses outright. May not pay any living expenses
Compensation from someone other than client
- Client gives informed consent
- No interference with atty-client relationship and professional judgment;
- Information remains confidential under 1.6 (with exceptions)
Clients with Diminished Capacity
5 Aspects
- Protective action authorized when diminished capacity is present and at risk of substantial physical, financial or other harm without action.
- Disclosures of client representation is protected under 1.6; the lawyer may reveal information, but o_nly to extent necessary to protect interests_.
- Evaluating capacity: factors to consider: ability to articulate reasoning; variability of state of mind; and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.
- Appointing a guardian: may be more action than necessary: “more expensive or traumatic for the client” than circumstances require.
- Emergency Legal Services: where imminent and irreparable harm is at risk, the lawyer may take legal action without establishing an atty-client relationship, but only where lawyer believes no other lawyer, agent, or representative is available.
