Advising Clients Flashcards
(11 cards)
What is the general allocation of authority between lawyer and client?
Client decides goals of representation.
Lawyer determines means of achieving goals.
Client holds more authority because they can fire the lawyer.
What is actual authority in a lawyer-client relationship?
Client gives express permission to lawyer for specific acts.
Example: Client explicitly authorizes settlement at a certain amount.
What is inherent (implied) authority in a lawyer-client relationship?
Lawyer has authority to act by virtue of being retained.
Limited: Most states, including California, do not allow lawyers to settle claims without actual client consent.
What is apparent (ostensible) authority in a lawyer-client relationship?
Client’s actions create reasonable belief that lawyer has authority.
Even without actual authority, agreements may bind client.
Client may still sue lawyer for breach of fiduciary duty.
When is a lawyer prohibited from counseling or assisting client conduct?
Cannot counsel or assist in conduct lawyer knows is criminal or fraudulent.
Lawyer may explain legal consequences or make good faith efforts to interpret the law.
What are key aspects of a lawyer’s prohibited conduct?
Lawyer must not aid or abet illegal conduct.
May give legal advice but not advise client to break the law.
Actual knowledge is required, but willful blindness counts as knowing.
How is prohibited conduct broader under California rules?
California adds ‘violation of any law, rule, or tribunal order’ to what lawyers cannot assist with, beyond just crimes or fraud.
What is the lawyer’s duty to keep clients informed?
Lawyer must keep client reasonably informed about case status.
California requires lawyers to inform clients about significant developments specifically.
What is the lawyer’s duty to communicate settlement offers?
Lawyer must promptly communicate all settlement or plea offers.
In California, lawyers must communicate all written settlement offers and significant oral offers.
What is the lawyer’s duty of candor to the client?
Lawyer must not materially misrepresent facts to client.
Fiduciary duties of honesty and loyalty apply.
White lies may be ethically questionable even if not explicitly prohibited.
