The Lawyer Client Relationship

Question 1

Client’s Decisions

Answer 1

Those of substantive legal import:

• commencing an action
• settlement
• plea
• jury trial or bench trial
• testifying in a criminal case or not
• appealing or not

Question 2

Attorney’s Decisions

Answer 2

Strategy, procedure, and tactics:

• discovery methods to use
• granting adjournments that do not prejudice the rights of the client

Question 3

If client loses the ability to make a clear decision OR is a minor –>

Answer 3

• have a guardian appointed for the client & then the guardian makes the decisions

In NY, an attorney can take reasonably necessary protective action & seek to have a guardian appointed if:
1- client has diminished capacity; AND
2- client is at risk of substantial physical, financial, or other harm; AND
3- client cannot adequately act in her own best interests

Question 4

Lawyer MUST WITHDRAW from a representation if:

4

Answer 4

1) Lawyer KNOWS representation will result in violation of the rules of professional conduct or of law
2) Lawyer suffers physical or mental disability that MATERIALLY impairs his ability to rep
3) The client fires the lawyer
4) Law KNOWS or REASONABLY SHOULD KNOW client is taking steps SOLELY to harass or maliciously injure another

Question 5

Lawyer MUST DECLINE representation if: (3)

Answer 5

1- KNOWS or REASONABLY SHOULD KNOW that the potential client wants to bring a legal action, raise a defense, or assert a position in a matter SOLELY for the purpose of harassing or maliciously injuring another

2- KNOWS or REASONABLY SHOULD KNOW that the potential client wishes to present a claim or defense in a matter that is not warranted under existing law, UNLESS it can be supported by a good faith argument for an extension, modification, or reversal of existing law

3- Lawyer is incompetent & cannot overcome lack of competence

Question 6

When MAY the lawyer withdraw? (permissive)

Answer 6

1- client persists in a course of action involving the lawyer’s services that the lawyer REASONABLY BELIEVES is criminal or fraudulent

2- Client has used the lawyer’s services to perpetrate a crime or fraud (past tense)

3- client insists upon taking action with which the lawyer has a fundamental disagreement (narrow exception)

4- Client deliberately disregards an agreement or obligation to the lawyer as to expenses and fees and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled

5- continued employment is LIKELY to result in the violation of a law or rule

6- lawyer’s inability to work w/ co-counsel indicates the the best interests of the client are served by withdrawal

7- client fails to cooperate in the representation and has made rep unreasonably difficult

8- the representation will result in an unreasonable financial burden on the lawyer

9- withdrawal can be accomplished w/o material adverse effect on the interests of the client

Question 7

When must a lawyer continue representation?

Answer 7

When ordered to do so by a tribunal, regardless of good cause for terminating

Question 8

Lawyer should take only those cases he or she is competent to handle.

• what does competence include?
• how can it be overcome?

Answer 8

Competence includes:
1- physical & mental competence
2- competence in the substantive law
3- having sufficient time to devote to the matter

You can overcome lack of competence by:
1- association w/ a competent lawyer; or
2- becoming competent in an area