Communicating with Clients Flashcards
(13 cards)
What general duties does a lawyer owe to a client when communicating?
No rule requiring truthfulness, but implied duty exists.
Must be candid: share both good and bad news; don’t mislead.
Lawyer-client relationship treated as fiduciary: prioritize client’s interests.
What is the Paternalistic Approach to client decision-making?
Lawyer chooses the action that’s best for the client.
Used when client can’t appreciate choices and consequences are severe/irreversible.
Based on lawyer expertise, empathy, and client ambivalence.
What is the Autonomous Approach to client decision-making?
Lawyer defers to client’s decisions without imposing their own views.
Respects individual human rights and equality under the law.
Client bears the consequences of their choices.
When is the Hybrid Approach used in lawyer-client decision-making?
Lawyer chooses either autonomy or paternalism depending on situation.
Autonomy when client is competent and decision is thoughtful.
Paternalism when client is impaired or at risk of irreversible harm.
What are a lawyer’s obligations when giving advice?
Must exercise independent professional judgment and render candid advice.
Can address not just legal but also moral, economic, social, and political considerations.
Lawyer must choose either a deferential or paternalistic approach per situation; not both simultaneously.
What should a lawyer do when a client has diminished capacity?
Maintain a normal client-lawyer relationship as much as possible.
Adapt communications: more time, accommodations, involve professionals if needed.
When can a lawyer take protective action for a client with diminished capacity?
If client is at risk of substantial harm and cannot act in their own interest.
Protective actions: consult with trusted individuals, seek a guardian appointment.
What happens to client confidentiality when taking protective action?
Client information remains protected.
Lawyer may disclose only as much as necessary to protect the client.
What are signs that a client may have diminished capacity?
Inability to explain decision-making.
Inconsistent mental state.
Inability to appreciate consequences.
Decisions inconsistent with long-term values.
Does client disagreement with a lawyer indicate diminished capacity?
No. Disagreement alone is not enough.
Need concrete facts showing the client cannot function normally.
What should a lawyer NOT do when a client has diminished capacity?
Should not make decisions for the client.
Should try to maintain normal relationship with accommodations (e.g., more time discussing, involving professionals).
When can a lawyer disclose client information if the client has diminished capacity?
Only when necessary to protect client from substantial harm.
Disclosure must be limited to what is reasonably necessary.
What facts should a lawyer look for when assessing diminished capacity?
Look for concrete facts, not just disagreement.
Assess client’s ability to function normally, appreciate consequences, and make decisions consistent with long-term values.
