Responsibilities to the Client Flashcards
Competence
- Requisite legal knowledge & skill
- physicial and mental ability
- requisite time and resources to handle the case
Steps to take when not competent
- tell client to seek other counsel
- study to become proficient in time to rep client wih his permission and at no additional charge
- associate with competent atty with client’s consent
Client decisions in representation
substantive issues: when to file, settle, accept a plea & testify
Attorney’s decisions
Procedural (court conduct of discovery, strategy)
Following clients deicsions
- Thus, attorneys must abide by the client’s wishes unless doing sowould be illegal, unethical, or immoral. Also, a lawyer cannot further a client’s unlawful objectives by knowingly providing legal advice to effectively commit or conceal a crime.
- Alternative:  Withdraw
Client losing capacity
What if the client loses the ability to make a clear decision? For example if you suspect that greedy relatives are trying to unduly influence your elderly client in her estate decisions, you can
seek the appoint of a guardian ad litem or take other appropriate action.
Communication with Client
An attorney must keep the client informed of the objectives and status of the representation. The attorney must promptly comply with reasonable requests for information.
Maintain Client Confidences
you may not disclose any adverse information no matter the source
Confidentiality broader than A/C privilige
Confidentiality survives death
When confidentiality can be broken
- to avoid or prevent harm or substantial financial loss to another as a result of client or third party criminal conduct clearly in violation of the law.
- to prevent serious injury or death
- to establish a legal defense in a criminal charge or civil claim involving the client
- with the client’s consent
An attorney MUST reveal confidences as required by law.
Confidence survives death
When A/c privilige comes into conflict with duty of a tribunal
remain silent
when must an attorney withdraw
- result in rule violation
- if he is forced
- conflict arises
when may an attorney withdraw
- client pursues a repugnant or imprudent objective
- when client fails to fufill an obligation
Conflicts rules of thumb
assume conflict exists even if possibility is remote
Lawsuits gainst current and former clients
- Lawsuits between current and former clients: you may represent a current client in an action against a former client except:
- When your current client wants to sue your former client involving a matter or transaction in which you represented the former client; OR
- When during representation of the former client you learned confidential information that is now relevant to the action by the current client. Note that if the two matters are “substantially related”
there is an irrebutable presumption that such
knowledge was acquired.
Steps necessary to obtain consent from a conflict
- explain the conflict
- explain the potential negative consequences
- send client to thing about it and give oppotunity to consult independent counsel
After taking these steps you must decide whether a resaonbly prudent lawyer would take the case
Unwaivable conflicts
- Successive conflicts are always unwaiveable
- Those prohibited by law
- Those in which it is unlikely that the lawyer can provide adequate representation to the affected clients.
- Current clients in the same or substantially related proceeding. Two common examples are:
- criminal matters (co-defendants)
- domestic matters
- Will drafting–you cannot be beneficiary of a will you drafted unless family member or a de minimus or nomial gifts
- GA, will drafter owes duty to testator and beneficiaries–they can sue for malpractice
Lending money to clients
cannot do it, even de minimus, except for litigation expenses
Fee payment by a 3P
okay but duty is alwasy to your client
Conflict between your client and you
- in order to waive a conflict between the attorney and the client, the attorney must get the informed consent of the client.
- If the conflict is a consentable one, an attorney may continue to represent each affected client, if the affected or former client consents (preferably in writing) after:
- informed consultation with the attorney about the conflict
- adequate information in writing about the material risks
- advice and opportunity to consult with independent counsel
- Limiting your malpractice exposure: You cannot limit your malpractice exposure by getting your client to agree not to sue you for malpractice. A lawyer is always subject to liability for discipline and malpractice. The commission of malpractice does not necessarily mean the conduct which led to the claim is subject to, rises to the level of, or is appropriate for discipline. Like disciplinary proceedings, in most cases the state of limitations on legal malpractice claims is four years.
- If the conflict is a consentable one, an attorney may continue to represent each affected client, if the affected or former client consents (preferably in writing) after:
Business with a client
genearlly prohbiited.
Does not apply to standard commerical transaction or business not connected to represetnation
always applies to financial interests adverse to you client
Similar claims of clients
must represent each client zealously
wrongful death
fiduciary duty to statutory beneficiaries to ensure their interests are protected even if not clients
