Rule 1.18: Duties to Prospective Clients
1. Who is a prospective client?
2. Who is not a prospective client?
1. A person who discusses with a lawyer the possibility of forming a lawyer-client relationship with respect to a particular matter is a prospective client.
2. When a person communicates unilaterally to a lawyer, with no reasonable expectation that the lawyer is willing to discuss forming a relationship, the person is not a prospective client.
What protections do prospective clients revieve?
Prospective clients receive some, but not all of the protection afforded clients
Confidentiality: Even absent a lawyer-client relationship, the information shared in any discussions should be kept confidential.
Just because they don’t retain you doesn’t mean you don’t hae to retain the confidentiality
Can a lawyer represent the wife in a divorce after talking to husband for an hour?
No shouldn’t in that situation
If lawyer received info from husband that could be significantly harmful to the person in that matter
Clients can be denied representation because of conflicts of interest. What happens in regard to the other lawyers in the firm?
All lawyers in the first are similarly disqualified
Rule 1.18 Prospective Clients
If a person provides info to a lawyer in response to general advertising, does a consultation occur?
No a consultation does not occur
When a lawyer has received disqualifying information, representation is permissible if:
1. Both the prospective client and the affected client have given informed consent, in writing
2. The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was necessary to determine if representation was possible
a. The disqualified lawyer is screened and receives no fee from the representation
b. Written notice is promptly given to the prospective client.
Rule 1.13: Organizations as Clients
i. A lawyer employed by an organization represents the organization through its (what, and define the term)
Reps through its duly authorized constituents
Duly authorized constituents include officers, directors, employees and shareholders
An organizational client is a legal entity, but it cannot act except through its constituents
Rule 1.13: Org as Clients
If the lawyer becomes aware that an officer, employee, etc. is engaged or plans to engage in action that is a violation of a legal obligation to the organization or a violation of law, the lawyer shall:
The lawyer must proceed as is reasonably necessary in the best interest of the organization, including referring the matter the highest authority in the organization.
Knowledge can be inferred from circumstances, so a lawyer cannot ignore the obvious.
A lawyer may reveal information relating to representation, “only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization” if: (two situations)
1. Despite the lawyer’s efforts to notify the highest authority, the organization:
a. insists on OR
b. fails to take timely action to address a matter OR
c. refuses to act in violation of law
2. The lawyer reasonably believes that the violation is reasonably necessary to prevent substantial injury to the organization
Note: The lawyer’s services do not necessarily have to have been used in furtherance of the violation, but the matter must be related to the lawyer’s representation of the organization.
In dealing with an organization’s directors, officers, employees, etc, a lawyer shall explain the identity of the client when:
When the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
Comment 10: The lawyer must be sure to clarify that where there is adversity of interest between a constituent individual and the organization, the lawyer cannot represent the individual and discussions between the lawyer and the individual may not be privileged.
When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, is the communication protected by Rule 1.6?
does not mean the constituents are not the clients of the lawyer though
Does this rule apply to government agencies?
Yes, it does apply to government agencies, branches of government, and the government as a whole
What is different when this rule is applied to a government agency rather than a private organization?
In a matter involving the conduct of government officials, a government lawyer may have authority under applicable law to question the conduct more extensively than a lawyer for a private organization in similar circumstances
A different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented bc public business is involved
Can a lawyer for an organization also represent a principal officer or major shareholder?
If Rule 1.7 requires consent, consent must be given by the appropriate official of the organization other than the individual who is to be represented, or by the shareholders
Can an organization represent themselves in a proceeding?
When the orgainzation is a partnership, under Colorado law, who does the lawyer represent, the individuals or the partnership as a whole?
Lawyer represents the partnership as a whole in Colorado, depends on the jurisdiction though.
Rule 1.14: Representing Clients with Diminished Capacity
Diminished capacity can be due to:
2. Mental Imparement
3. Some other reason
Rule 1.14 Diminished Capacity
A lawyer may take reasonably necessary protective action when he believes the client: (three things)
1. Has diminished capacity
2. Is at risk of substantial physical, financial, or other harm unless action is taken,
3. Cannot adequately act in the clients own interest
Rule 1.14 Diminished Capacity
When taking protective action, is the lawyer authorized to reveal confidential information about the client?
Yes, but only to the extent reasonably necessary to protect the client's interests
Allows lawyer to seek guidance from other people to determine whether this client has diminished capacity or whether they need protection
Rule 1.14: Diminished Capacity
Is a lawyer prevented from disclosing confidential info when taking protective action if the client tells the lawyer not to reveal the confidential info?
No, the lawyer still has implied authorization
Rule 1.14 DIminshed Capacity
What are some examples of protective action the lawyer can take if he reasonably believes that a clint is at risk of harm?
Such measures could include:
consulting with family members,
using a reconsideration period,
using voluntary surrogate decisionmaking tools such as consulting with support groups and entities that can protect the client
Rule 1.14 Diminished Capacity
What factors should the attorney balance when determining diminished capacity?
The client's ability to articulate reasoning leading to a decision, and the variably of the client's state of mind and ability to appreciate consequences of a decision
The substantive fairness of a decision
The consistency of a decision with the known long-term commitments and values of the client
Whose responsibility is it to determine whether a client of diminished capacity needs a guardian appointed?
The evaluation is entrusted to the professional judgment of the lawyer
In emergency situations, can a lawyer take legal action on behalf of a person with diminished capacity if the person cannot establish a client lawyer relationship or communicate their judgments on the matter?
To what extent?
Yes, the lawyer can take legal action on behalf of the diminished client if the person (or other person for the diminished client, in good faith) consulted with the lawyer pertaining to the matter.
The lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer or representation.
Lawyer should represent only to the extent reasonably necessary to maintain the status quo or avoid imminent and irreparable harm