Scope of the Attorney-Client Relationship Flashcards
Situations where client has final say
Settlement offers
Pleas
Waiving jury trial in a criminal case
Whether to testify as a criminal defendant
Client’s Criminal/Fraudulent Conduct
Cannot counsel or assist client in committing criminal or fraudulent conduct, but can advise client of the legal consequences of a proposed course of action. You must withdraw from representation if the client insists on pursuing a criminal/fraudulent course of action.
CA: Also cannot assist in conduct violative of court order. If CA law conflicts with federal or tribal law, must inform client about the related fed/tribal law and policy.
Limiting Scope of Representation
OK if (1) limitation is reasonable under the circumstances, and (2) the client gives informed consent.
Declining Representation
Can generally refuse to represent a client for any reason, but cannot if court appointed unless for good cause. Good cause includes: (1) Representation is likely to cause a violation of ethical rules/law; (2) the representation is likely to result in an unreasonable financial burden, or (3) the client/cause is so repugnant to the attorney as to impair the attorney-client relationship or ability to represent the client.
CA: No rule re: court appointments, but the Attorney Oath requires a promise to never reject, for personal reasons, the cause of the defenseless or oppressed.
Protecting Client Interests Upon Terminating Representation
Must give reasonable notice of termination, allowing time for the employment of other counsel. Also must surrender the client’s file and any other papers the client is entitled to, and refund any unearned advance payments.
Grounds for Mandatory Rejection/Withdrawal
Must decline to take representation or withdraw if: (1) representation will result in violation of ethical rules/other law; (2) lawyer’s mental/physical condition substantially impairs their ability to represent the client; or (3) the lawyer is discharged by the client.
CA: Additional ground where client brings an action, conducts a defense, asserts a position, or takes an appeal without probable cause and for purpose of harassing or maliciously injuring someone.
Grounds for Permissive Withdrawal
A lawyer may withdraw from representation if (1) they can do so without a material adverse effect on the client’s interests, or (2) where there’s good cause to do so.
CA: Doesn’t require no material adverse effect on client before withdrawal. Allows withdrawal if the client knowingly and freely assents to termination.
“Good Cause” for Permissive Withdrawal
(1) Client insists on criminal/fraudulent action involving the lawyer’s services; (2) the client has already used the lawyer’s services to perpetrate a crime or fraud; (3) client fails substantially to fulfill an obligation to the lawyer and has been given reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled; (4) the representation has been rendered unreasonably difficult by the client; (5) the client insists on an action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; or (6) the representation will result in an unreasonable financial burden on the lawyer.
CA: Doesn’t include #5. Adds as ground for good cause where lawyer is unable to work with co-counsel and withdrawing would serve client’s interests; and where the lawyer’s physical/mental condition would make it hard to continue the representation but isn’t severe enough for mandatory withdrawal.
