Scopes and Bounds of Representation Flashcards
Can a lawyer limit the scope of representation?
Yes if : (i) the limitation is reasonable under
the circumstances, and (ii) the client gives informed consent.
Can a lawyer discuss legal consequence of a crime or fraud with client
Yes but must not advise a client to engage in conduct that the lawyer knows is criminal or
fraudulent, or assist the client in such conduct.
When a lawyer discovers that her client expects assistance that violates a law or legal
ethics rule, or if the lawyer intends to act contrary to the client’s instructions, the lawyer
must
explain why she cannot do what the client expects.
If a client insists on illegal or unethical assistance, the lawyer ____ withdraw from representation
must
True or False: Sometimes withdrawal alone is
not enough—the lawyer may have to make a “noisy withdrawal” in which she gives
outsiders notice of her withdrawal and disaffirms any of her prior opinions, documents,
affirmations, or the like that the client is using to carry out the wrongdoing.
True
What decisions are made by the client?
(i) Whether to accept a settlement offer;
(ii) What plea to enter in a criminal case;
(iii) Whether to waive a jury trial in a criminal case;
(iv) Whether the client will testify in a criminal case; and
(v) Whether to appeal
Proper or not? Lawyer L agrees to represent C on a contingent fee basis in C’s suit against D for slander.
L’s fee agreement provides that the suit cannot be settled before trial without L’s consent.
Improper- The decision to settle a suit is made by the client, not the lawyer—
even in a contingent fee case
How can a lawyer bind a client?
A lawyer is the client’s agent. Under the law of agency, the lawyer’s actions on behalf of a
client will legally bind the client if the lawyer acted with actual or apparent authority.
What is actual authority?
Can be express or implied.
A lawyer has actual authority if she reasonably believes she is authorized to act based on her dealings with the client.
Actual authority can be express or implied (i.e., what
the client has expressly told the lawyer to do, along with anything else impliedly authorized to carry out the representation).
A lawyer also has actual authority to take actions
that she reasonably believes are required by law or court order.
How is apparent authority established?
when the court or third party reasonably assumes that the lawyer has authority to act based
on some manifestation from the client that the lawyer had authority.
Is a client bound by a lawyer with apparent authority?
Yes but can sue for damages.
True or False: Apparent authority doe not always bind the client if when it comes to settlement and other decisions.
True
If a lawyer acts for a client and a client ratifies the action, can the client sue?
No - but the attorney can still be subject to discipline.
When does actual authority end?
A lawyer’s actual authority to represent a client ends when: (i) the matter is complete or the lawyer is fired or withdraws; (ii) the client dies (or dissolves, if the client is
an organization); or (iii) the lawyer dies or is otherwise unable to continue the representation (e.g., because of disbarment or disability).
When does apparent authority end?
when the third party knows or should know that any of these events occurred,
or whenever it can reasonably be inferred that the lawyer lacks actual authority.
True or False: When a lawyer’s actual authority ends, the lawyer must not longer purport to have
authority and must notify third parties who are relying on the continued existence
of the authority
True
When taking protective action regarding client with diminished capacity, the lawyer has implied authority to reveal the client’s confidential information, but only to the extent necessary to protect the
client.
True
When a person with seriously diminished capacity faces imminent and irreparable harm
to her health, safety, or financial interest, a lawyer ___ take legal action on her behalf,
despite her inability to establish a lawyer-client relationship or to make or express considered
judgments about the matter.
May - but not until the person (or someone
acting on her behalf) has consulted the lawyer, and the lawyer should not act unless he
reasonably believes the person has no other representative available. Goal is to preserve status quo or prevent irreparable harm.
True or False: Normally, a lawyer would not seek compensation for emergency actions taken on behalf
of a nonclient. [
True
What is informed consent?
means that the
client agrees to a proposed course of conduct after the lawyer has sufficiently explained the
material risks and reasonable alternatives.
The lawyer ____ keep the client _______ informed about the status of the matter and about
the means by which the lawyer plans to accomplish the client’s objectives. [
Must
Reasonably
During representation a lawyer ___ inform client about a material error.
Must
What is a material error?
An error
is considered material if a disinterested lawyer would conclude that: (i) it is reasonably
likely to harm or prejudice the client; or (ii) even in the absence of harm or prejudice,
it is of such a nature that it would reasonably cause the client to consider discharging
the lawyer
True or False: Once an attorney-client relationship has ended, the lawyer has no
obligation to inform the former client of material errors discovered after the fact
True
When a client does make a reasonable
request for information, the lawyer ____ respond promptly.
Must
If the client expects the lawyer to do something that is either illegal or unethical, the lawyer
____ consult with the client and explain why he cannot do what the client wants.
Must
True or False: A lawyer may delay the transmission of information to a client if the client would be likely to
react imprudently to an immediate communication
True but The lawyer must not, however, withhold
information to serve the lawyer’s or a third person’s interest or convenience.
True or False: A court rule or order may forbid a lawyer from sharing certain information with a
client, and the lawyer must comply with such a rule or order
True
When can a contract get away from a contractual arrangement with lawyer?
When
- Contract not made at outset unless lawyer proves the contract was fair and reasonable to client.
- Contract made after work completed - if client not informed of facts needed to evaluate payment to lawyer or other benefit
Bernie, a college professor accused of inappropriate conduct, hires Amber to represent him in front of his university’s disciplinary board. Bernie proposes to Amber that if he keeps his job, he will pay her $5,000. If he loses his job, he will pay her $500. Amber agrees. Amber memorializes the agreement in writing and sends it to Bernie, but he never returns it. The representation is successful, and Bernie keeps his job.
Is Amber subject to discipline?
Yes because bernie did not sign the document.
a fee can be “contingent” even if there is no res, or pool of money, from which the fee can be paid. The amount of the fee was contingent on Bernie’s success in the case, so Amber was required to comply with the formalities for contingent fees.
A client instructs the lawyer to take a course of action that seems to constitute money laundering, although the client does not seem aware of this. The lawyer says no, and when the client asks why not, the lawyer refuses to discuss the matter further and tells the client to get another attorney.
Subject to discipline?
Yes - If the client expects the lawyer to do something that is illegal or unethical, the lawyer must consult with the client and explain why he can’t do what the client wants. The lawyer should have explained that the action amounted to money laundering and he was unable to assist the client in criminal or fraudulent conduct.
True or False: Lawyer can’t advise client to do something illegal but can discuss consequences with them
True
What decisions are made by the lawyer?
Strategic decisions but must consult with the client about how work is being done.
What is the rule with respect to clients with diminished capacity?
Maintain normal relationships with them to the extent possible.
If a client is at risk of substantial harm, can the attorney take protective action?
Yes can consult with family or guardian.
What is implied when the lawyer is taking protective action for the client?
Authorized to disclose client’s confidential information to the extent necessary to protect their interests.
What are the lawyer’s responsibility with respect to communicating with the client?
Don’t avoid the client and don’t let things fester.
Give case updates
Advise of game plan
Respond to reasonable request for information
Obtain informed consent when necessary
What is the rule regarding settlement and plea offers?
Lawyer must promptly inform the client of settlement and plea bargain offers unless client has expressly authorized acceptance or rejection of certain offers.
