2 Flashcards
(28 cards)
How does a lawyer act for a client
As an agent and an advisor.
Is the knowledge of the lawyer imputed to the client?
Yes, agent’s knowledge attributed to the principal - giving notice to lawyer of court scheduling is attributed to the client.
What is the defense for a client if knowledge is being imputed to the client
Only option is to say that he wasn’t told anything.
Are client’s bound by a lawyer’s errors?
Yes. There is generally no immediate recourse for lawyer misconduct, with some exceptions.
What are some exceptions for recourse for lawyer misconduct?
Malpractice suit. In criminal case will need to show the ineffective assistance of counsel or a wrong plea
What about tactical mistakes?
Still bind the client. Remedy is malpractice. Don’t want to burden the other side.
Improper collection of fees
If a lawyer acts improperly when collecting fees and the defendant sues the client and the firm in tort the results are split.
- Firm is an independent contractor when pursuing its fees.
OR
- Firm is still representing the client.
Authority to settle
The lawyer must absolutely communicate settlement offers to the client, no matter how ridiculous they may be.
Duty to inform and Advise. R.1.4
There is an extensive duty to inform and advise the client.
Points on duty to inform
Clients are entitle to make decisions about big picture tactics and the general means to achieve some end.
The lawyer must keep the client reasonably informed of the means but does not need to tell the client about all of the details.
Take away about duty to inform
The lawyer must inform the client of everything. Send a client a copy of every document filed but there is no ethical responsibility to do so.
Client’s right to know
The most crucial part is to communicate all settlement offers. Part of end result is client’s decision.
What about information outside of the scope of representation
Lawyers often hired to take a certain action may or may not be required to volunteer more information.
What is the lawyer’s duty for relaying information outside of the scope of representation
The lawyer has a duty to answer questions and volunteer options that serve the client’s interests.
Duty extends beyond the specific task and spreads at least to downside risks.
Duty to inform vs. Duty of loyalty
Problematic. You are required to withdraw from representing one or both clients if the lawyer recognizes the necessity of revealing confidential information relating to one client in order to effectively carry out the representation of another client.
What is the risk?
Problematic to give a client numerical odd because it implies a certain level of exactness. You need to give the client enough information to make an informed decision
What about if the partners disagree about a certain outcome?
The client is entitled to a firm opinion and explanation of risks but not the fact that partners disagree on the outcome.
Autonomy R. 1.2
This comes down to the freedom of choice when representing a client vs. the client’s freedom of choice.
Scope of representation 1.2c
can limit the scope of representation only with informed consent.
Scope of representation 1.2b
Thoughts and views of the lawyer are not attributable to the lawyer.
Public defender within the scope of authority
- Cannot plead guilty without the client consent.
- Cannot make the client testify
- Cannot decline to appeal the case if the appeal is available.
Does client have the right to expect the lawyer to file an appeal?
Generally yes. Unless an Anders brief is filed explaining that there is no real grounds for an appeal; no errors and would be frivolous to file.
Duty to inform the other side of a mistake
A lawyer cannot tell the other side of the error without first consulting the client because it would be disadvantageous to the client.
A lawyer can talk to the client and explain the situation because there will be later problems but if the client refuses the lawyer must stay quiet.
Diminished Capacity R. 1.14
Usually need to get a guardian ad litem appointed.
