The Client-Lawyer Relationship Flashcards
Accepting or rejecting representation
Generally, a Lawyer has NO DUTY to ACCEPT REPRESENTATION of a client.
- Exception—COURT APPOINTMENTS
- However, Court Appointments may be declined for cause
Sufficient causes to decline
- representing client is likely to result in violation of MRPC or other law
- representing client is likely to result in unreasonable financial burden on lawyer
- client or cause is so repugnant to lawyer that it would likely impair client-lawyer relationship or lawyer’s ability to represent client
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Duty to Reject a Client— see mandatory withdrawal. A lawyer has a duty to reject representation when
- (1) it cannot be performed competently, promptly, without improper conflict of interest & to completion or
- (2) the representation would violate a rule of ethics or law.
FORMATION
A client-lawyer relationship is formed when a prospective client reasonably believes a relationship has been created. Belief is generally reasonable when:
- a client communicates to a lawyer an intent that the lawyer provide legal services for the person AND
- the lawyer fails to show a lack of consent to forming a client-lawyer relationship.
NOTES
- no need for fee term or contractual agreement to create the relationship
- Test is not contractual, more like a negligence test (duty)
- Prevention of attorney-client relationship– Just say NO. Make clear to the prospective client that you are NOT in an attorney-client relationship.
Scope, Objective, and Means of Representation
Limitation on scope
- Lawyers and clients may limit the scope of representation.
- The scope cannot be so limited as to create ineffective representation.
Decisions made by Clients and Layers
- the CLIENT has the authority to determine the objectives of the representation
- the LAWYER has the authority to determine the litigation strategy and methods used to obtain the client’s objectives.
Criminal prosecution – ONLY the client can make the following decisions:
- Whether to TESTIFY
- Whether to exercise the right to JURY TRIAL; and
- PLEA BARGAIN must be communicated to the client.
Settlement Offers / Plea Bargains MUST be communicated to the client UNLESS Prior Authorization given by Client concerning a limitation (Ex: Client will not accept less than $1,000,000)
- The lawyer may rely on such authorization:
- (1) until there has been a material change in circumstances and
- (2) subject to the lawyer’s duty to keep the client reasonably informed about the status of the matter.
Aggregate settlement is a settlement of a group of related claims that involve (1) an element of collective allocation of funds OR (2) a collective condition for the settlement to be effective.
A lawyer may make an aggregate settlement ONLY WHEN EACH CLIENT CONSENTS in WRITING after the LAWYER consults with each client and DISCLOSES:
- (1) the nature and extent of each and all claims and pleas
- (2) the participation of each party in the settlement.
Counseling on CRIME and FRAUD
- YES as to LEGAL CONSEQUENCES
- NO as to HOW TO COMMIT a Crime
Lawyer’s actual & apparent authority
Lawyer’s actual & apparent authority When a lawyer acts with actual or apparent authority, the client is bound by the lawyer’s acts.
- Actual authority exists when (1) the client authorizes the lawyer’s action, (2) the client ratifies the lawyer’s action, or (3) the action is reserved for the lawyer.
- Apparent authority exists when the tribunal or third person reasonably assumes that the lawyer is authorized to act based on the client’s manifestations of such authorization
- Simply retaining a lawyer confers broad apparent authority on the lawyer—unless facts known or apparent to the tribunal or third party indicate that the lawyer’s authority is narrower.
Note – Look out for questions asking if agreement is ENFORCEABLE – Dont get distracted if Lawyer did something that might subject them to discipline, thats another issue.
- When a lawyer acts with actual or apparent authority, agreement is ENFORCEABLE
- Example: Client tells Lawyer not to delay date for trial. Lawyer agrees with OC to delay date for trial. Agreement is enforceable by apperant authority
Communications with Client
General Rule: The lawyer MUST tell the client everything the client needs to know to make an informed decision about the case. A lawyer must:
- (i) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required by the Model Rules;
- (ii) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
- (iii) keep the client reasonably informed about the status of the matter;
- (iv) promptly comply with reasonable requests for information from the client; and
- (v) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Model Rules or other law.
Withholding information from a client – There are some times when a lawyer may be justified in delaying transmission of information, when:
- the client would be likely to react imprudently to an immediate communication
- disclosure would harm the client.
- local rules or court orders governing litigation may REQUIRE that information supplied to a lawyer may not be disclosed to the client
- Note that a lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person.
Protective Actions for Client with DIMINISHED CAPACITY
Minor OR Medical Disability (mental disability, drug addiction)
A lawyer may reasonably believe that a client
- (1) has diminished capacity
- (2) is at risk of substantial harm (physical, financial, other) unless action is taken, and
- (3) cannot adequately act in his/her own interest.
1) If so, the lawyer can:
- CONSULT with persons or entities that have the ability to take action to protect the client
- seek appointment of a GUARDIAN, guardian ad litem, or conservator or
- take any other reasonably necessary PROTECTIVE ACTION
Revealing Confidential Information OK – In doing so, the lawyer is impliedly authorized to reveal confidential information about the client to the extent necessary to protect the client’s interests—even if the client objects.
- But before consulting with other persons or entities, the lawyer should, at the very least, determine whether the person or entity is likely to act adversely to the client’s interests.
2) if NOT
- Must maintain an ordinary lawyer client relationship
MANDATORY withdrawal
A lawyer MUST withdraw from representing a client in limited circumstances
1) Violation of Rules of Professional Conduct or other LAW –
- Ongoing Fraud, Crime, Ethical Violation
- (ex: Representing a client who wants to bring claim against another current client) Note that Lawyer could represent the new client if the requirements under Rule 1.7 regarding conflicts among current clients are satisfied.
2) Attorney Health / Impairment
- A lawyer is required to withdraw when his physical or mental condition materially impairs his ability to represent the client.
- (e.g., drug dependance intefering with responsibilities)
3) Discharge of attorney – A client has an absolute right to fire an attorney at any time, with or without cause. (unless ordered by the court to continue representation)
- Cannot be modified by contract
- Cannot have a penalty provision such as liquidated damages or elevated fees
- Client still owes FEES DUE to the discharged attorney (unless discharged for cause).
Limitations on client’s ability to discharge lawyer:
- Client with severely diminished capacity– may lack the legal capacity to discharge the lawyer. The lawyer may take reasonably necessary PROTECTIVE action to protect the client’s interests.
- Client with court-appointed lawyer – At the least, the client should be advised as to the consequences of a discharge, which may include a court concluding that the appointment of a successor counsel is unjustified, and requiring the client to continue pro se.
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Order to Continue Representation
- A lawyer attempting to withdraw MUST continue representing the client if ORDERED to do so by a tribunal, EVEN IF there is otherwise good cause for terminating the representation.
Withdrawal: Notice and Permission — A lawyer MUST provide NOTICE to and receive PERMISSION from the court to withdraw from representing a client WHEN:
- (1) required by a law or other rule (e.g., after court processes begin) or
- (2) the court appointed the lawyer as legal counsel.
Permissive Withdrawal
A Lawyer MAY withdraw (permissive)
1) If the withdrawal is HARMLESS
- at ANY TIME
- Harmless– without material adverse effect on the interests of the client.
2) If Withdrawal is HARMFUL Lawyer MAY withdray if:
- i) The client persists in a course of action involving the lawyer’s services that the lawyer “Reasonably Believes” is CRIMINAL or FRAUDULENT
- ii) lawyer learns that PREVIOUS services of the lawyer have been used by the client to perpetrate a CRIME or FRAUD
- iii) Client’s action is REPUGNANT to the attorney; lawyer has fundamental disagreement (client is neo-nazi)
- iv) Unreasonable financial burden –(caution: a bad deal / fee arrangement is not enough)
- v) Client fails an obligation to the lawyer (paying fees) – (must give reasonable warning that the lawyer will withdraw if the obligation is not met)
- vi) The client has made representation unreasonably difficult for the lawyer
- vii) Good Cause –(e.g., illness, family emergency)
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Order to Continue Representation
- A lawyer attempting to withdraw MUST continue representing the client if ORDERED to do so by a tribunal, EVEN IF there is otherwise good cause for terminating the representation.
Withdrawal: Notice and Permission — A lawyer MUST provide notice to and receive PERMISSION from the court to withdraw from representing a client WHEN:
- (1) required by a law or other rule (e.g., after court processes begin) or
- (2) the court appointed the lawyer as legal counsel.
Lawyer’s Duties to Client Upon Termination
(Mandatory AND Permissive)
1) take steps to extent reasonably practicable to protect client’s interests:
- provide reasonable notice to the client;
- allow time for employment of another lawyer;
- surrender papers & property to which client is entitled;
- refund any advanced fees or expenses that have not been earned
2) Maintain client’s confidentiality
3) Avoid conflicts of interest involving client
Client’s Property After withdrawal or termination
Recovery of Attorneys Fees Upon Termination of Representation – Lawyer is generally entitled to fees already EARNED but not yet paid. Unless the tribunal determines that recovery of the contractual fee is more appropriate, a discharged or withdrawn lawyer is entitled to the lesser of:
- the fair value of the services rendered (i.e., quantum meruit) or
- a prorated proportion of the agreed contractual fee between the client and the lawyer.
Forfeiture of Fee
- However, a lawyer who is discharged due to a serious and clear violation of a duty owed to the client may forfeit his/her fee.
Client’s Property
- Return the client’s property and unearned fees
- If the client still owes a fee, the lawyer can have a PASSIVE retaining lien on the client’s property—cannot sell the property; operates like collateral
Disbursement of funds (third-party dispute)
- An attorney must HOLD disputed funds until the third-party’s dispute is RESOLVED.
Disputed claims
A lawyer has a fiduciary duty to reasonably safeguard property belonging to a client or third party that is in the lawyer’s possession in connection with a representation. A lawyer generally satisfies this duty by:
- 1) holding the property SEPERATELY from the lawyer’s own property
- 2) keeping a complete ACCOUNTING of the property and
- 3) promptly DELIVERING the property to the client or third party when delivery is due under the circumstances.
Client Trust Account
- Accordingly, a lawyer must deposit legal fees and expenses that the client has paid in advance into a client trust account,
- The lawyer can only withdraw fees as earned or expenses as incurred.
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1) Seperate from Lawyers own Property
- A lawyer generally cannot deposit his/her own funds into a client trust account
- EXCEPTION—can use their own funds to pay the trust account’s bank service charges when they become due.
3) If multiple persons claim interests in property held by the lawyer,
- the property must be kept separate until the dispute is resolved.
Type of dispute
Fee dispute with CLIENT – Lawyer MUST
- promptly notify client that lawyer received property
- keep disputed fee separate in client trust account until dispute is resolved and
- promptly distribute undisputed funds to client and/or lawyer
Third party’s claim – Lawyer must promptly:
- notify client & third party that lawyer received property
- distribute undisputed property to client, lawyer, and/or third party and
- upon client’s or third party’s request, render full accounting regarding property
