Professional Responsibility Flashcards
Lawyer-Client Relationship: Formation
There is no duty to accept representation. There is a duty to reject representation if it would violate an ethical rule. A lawyer-client relationship is formed when the client reasonably believes the relationship exists, and no formal writing is required.
Lawyer-Client Relationship: Scope of Representation
The client makes all decisions regarding the objectives of representation, the lawyer makes all decisions regarding the strategy and methods to achieve the objectives.
Client has ultimate power to decide whether to accept a settlement or settle a case. Lawyer must communicate all bona fide settlement offers to the client. Lawyer must not accept a settlement offer on the client’s behalf without the client’s consent. The opposing party may still be able to enforce the settlement agreement if the lawyer had apparent authority.
Criminal Client decides whether to testify, whether to waive jury trial, and whether
to enter guilty plea.
**A lawyer is absolutely prohibited from counseling or assisting the client in conduct that the lawyer knows is a crime or fraud. A lawyer who doesn’t know the client’s activity is criminal or fraudulent initially but later finds out that it is and the activity is ongoing may withdraw from representation and might have to disaffirm any document or opinion previously given in order to avoid assisting in the wrongdoing.
Lawyer-Client Relationship: Duty to Accept Court Appointment Unless Good Cause
A lawyer has a duty to accept court appointment unless good cause: (1) lawyer is not competent (2) representation would result in improper conflict of interest (3) representation would impose an unjust financial burden on lawyer.
Lawyer-Client Relationship: Duty to Reject
MR – would violate a law or any rule of ethics or law; physical or mental condition would materially impair the representation.
CA– object of representation is to assert a frivolous claim for the purpose of harassing or injuring another person; client intends to bring a claim not warranted under existing law and cannot be supported by good-faith argument to extend, modify, or reverse existing law.
Lawyer-Client Relationship: Termination
An attorney may withdraw from representation when circumstances allow, but she has a duty of mitigation to lessen any adverse impact upon the client.
Lawyer-Client Relationship: Permissive Withdrawal
MR ONLY – A lawyer may seek to withdraw if he can do so w/out materially harming the client; because the representation would result in an unreasonable financial burden on lawyer; because client has used lawyer’s services in the past to perpetuate a crime or fraud.
MR/CA The client’s conduct makes representation unreasonably difficult; the client insists that the lawyer take action contrary to the lawyer’s judgment, client fails to pay lawyer’s fee, other good cause exist.
Lawyer-Client Relationship: Mandatory Withdrawal
MR, a lawyer must withdraw, and is subject to discipline, if failure to do so would result in (1) violating ethics rules or other law; client insists on asserting a claim or defense not warranted under existing law or a good-faith argument for law’s extension, mod, reversal; client seeks to pursue illegal course of conduct, or insists that lawyer engage in illegal conduct.
CA (1) a lawyer must withdraw if he knows or should know that continued employment would violate the RPC or the SBA (not other law); (2) a lawyer must
withdraw if he knows or should know that a client is asserting a claim or defense without probable cause.
MR/CA (3) a lawyer must withdraw if his physical or mental condition materially impairs his ability to represent the client.
Lawyer-Client Relationship: Duties Upon Termination
Upon termination, the lawyer has a duty to take reasonable measures to minimize the harm done to the client. Lawyer must promptly refund any part of advance fees that has not been earned.
In CA, true retainer fees do not need to be returned.
Lawyer must return all papers and property to which the client is entitled under the MR–can retain papers relating to client as security for a fee only to extent permitted by law.
In CA, the lawyer must promptly release all documents and papers reasonably necessary to client’s representation, regardless of whether client has paid.
