THE CLIENT-LAWYER RELATIONSHIP Flashcards
The relationship between a lawyer and client is?
Contractual
The lawyer operates as both the client’s
fiduciary and agent
As a fiduciary, the contract between the lawyer and the client will be construed:
against the lawyer
and closely scrutinized for fairness
Implied Assent and Reasonable Reliance
The lawyer’s assent is implied when he fails to clearly decline representation
and the prospective client reasonably relies on the representation. The reasonableness of the reliance is a question of fact.
Duty to Reject Certain Cases
(1) Client’s Motive Is Harassment [Rule 4.4(a)]
(2) Unsupportable Factual or Legal Position [Rule 3.1]
(3) Lawyer Not Competent (Rule 1.1)
(4) Strong Personal Feelings [Rule 1.16(a)(1), 1.7(a)(2).
(5) Impaired Mental or Physical Condition [Rule 1.16(a)(2)]
Duties owed to a prospective client. The lawyer has the duty to: (3 things)
(1) Protect confidential information
(2)protect any property the prospective client has given the lawyer.
(3) use any reasonable care in giving the person any legal advice, such as whether the claim has merit, whether COI exists, and when the action must be commenced.
Does a lawyer have an ethical obligation to accept unpopular cases?
Yes, under rule 6.2 (comment 1). Lawyers have an ethical obligation to help make legal service available to all who
need it. A lawyer can fulfill this obligation by accepting a fair share of unpopular
matters or indigent or unpopular clients.
Decisions to be made by the Client:
(1) whether to accept a settlement offer;
(2) what plea to enter in a criminal case;
(3) whether to waive a jury trial in a criminal case;
(4) whether the client will testify in a criminal case;
(4) whether to appeal. [Rule 1.2(a)].
What are a clients and lawyers options if they disagree?
(1) should try to resolve their disagreements, but if they cannot:
(a) lawyer can withdraw, or (b) client can fire the lawyer. [ Rule 1.16(a)(3), (b)(4).
Lawyer’s Authority to Bind Client
Actual Authority—Lawyer’s Belief; apparent authority- third party’s belief; and ratification.
When does a lawyer have actual authority?
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. [Restatement §26A]
When does a lawyer have apparent authority?
When dealing with the court and third parties, a lawyer has apparent authority
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.
How does a client create apparent authority?
Generally, act of retaining a lawyer, subject to the decisions that are required to be made by the client. Or if a client somehow indicated to the opposing party that the lawyer was authorized to settle the case.
Ratification
Even if a lawyer acted without any authority, the client may subsequently ratifythe act (e.g., by cashing a settlement check). The effect of ratification is the
same as if the lawyer had originally acted with actual authority. [Restatement
§26A] Consequently, the client is bound and may not sue the lawyer for
damages. Note, however, that the lawyer would still be subject to discipline.
When does a lawyer’s authority end?
(1) when the matter is complete, or the lawyer is fired or withdraws, (2) client dies, or (3) lawyer dies or is otherwise unable to continue the representation (i.e, disbarment or disability).
