LEGAL PROFESSION OUTLINE:
PART ONE: THE CLIENT-LAWYER RELATIONSHIP:
I. DEFINING THE CLIENT-LAWYER RELATIONSHIP:
A. IS THERE A CLIENT HERE?:
1. Agreement Necessary: no lawyer client relationship is formed until both lawyer and client agree.
2. Duties to a Prospective Client: lawyer owes a duty not to mislead prospective cliesnt into believing he’s a client.
a. Duty to disaffirm belief: if a client believes the lawyer is working for him and manifests this intent to the lawyer, the lawyer must negate the client’s expectation.
B. ELEMENTS OF THE CLIENT-LAWYER RELATIONSHIP:
1. Competence (MR 1.1): this duty includes:
a. Ability to perform required services and
b. Care in performing those services.
2. Confidentiality: evidentiary attorney-client privilege and ethical duty of confidentiality protect confidential information of clients.
3. Duties of lawyer as agent: lawyer is an agent of the client, subject to the limitations imposed by the law of agency.
a. Apparent Authority: lawyer’s conduct will be attributable to the client, even if the lawyer errs or is careless.
4. Fiduciary Duty: lawyer stands in a fiduciary relationship to a client.
a. Changes in customary contract: will be construed against the lawyer and closely scrutinized fairness.
5. Duties of Loyalty and Diligence (MR 1.3): lawyers must act with reasonable diligence and promptness in representing clients.
6. Duty to Inform and Advise (MR 1.4): a lawyer must:
a. Keep each client informed about the status of the client’s matters.
b. Comply promptly with reasonable client requests for information; and
c. Provide clients with information reasonably necessary to make informed decisions about the representation.
C. DUTY OF CONFIDENTIALITY:
1. Attorney-Client Privilege (Evidentiary): protects a lawyer from having to disclose in court proceedings information that the client has revealed in confidence.
a. Requirements: need all:
1) Client: holder of privilege must be (or have sought to become) a client.
2) Attorney: person to whom the communication was made must be an attorney acting as such at the time.
3) Confidence: communications must be made in confidence.
4) For legal advice: communications must be made for the purpose of obtaining legal advice.
b. Scope of privilege:
1) Only applies to communications: doesn’t protect incriminating documents or physical evidence turned over to the lawyer.
2) Communication not in confidence: if the communication doesn’t take place in confidence it may be lost.
3) Information shared by clients with common interest: if two or more clients have a common interest in a matter, they and their lawyers may share information without losing the privilege.
c. Corporation as “client”: privilege extends to corporate clients:
1) Control Group: privilege extends only to communications between lawyer and those who control the activities of the entity.
2) Subject Matter: privilege extends to all communications to the lawyer for the purpose of giving the entity legal advice.
3) Uphjohn: privilege extends to communications made by employees:
a) Concerning matters w/in their scope of employment and
b) Knowing that the questions were for the purpose of giving entity legal advice, but privilege didn’t extend to factual matters within employee’s knowledge.
4) Goodfarb:
a) Initiated by employee: privilege extends to statements made in confidence seeking legal advice about employee’s own actions.
b) Initiated by entity: privilege extends only to employee statements regarding employee’s own conduct made to help entity evaluate legal consequences of that conduct.
5) Rest. §73: privilege extends to:
a) Legal matter of interest to the entity.
b) Confidential.
c) Disclosed only to “privileged persons” or agents of the entity who need to know information to make decisions.
d. Responsibilities of Lawyer is Asserting the Attorney-Client Privilege: lawyer has a duty to advise the client of the privilege and timely assert the privilege, unless
s to the client.
a) Admissible: are admissible against client if lawyer was authorized to speak on the subject.
c. Inherent agency power – derives solely from the existence of the agency relation for the protection of persons harmed by, or dealing with, a servant or other agent.
d. Without the actual or inherent power to settle they may still have the apparent authority to settle, created because the client has said or done something that has led the other party to conclude reasonably, though mistakenly, that the lawyer is authorized to settle.
e. Anyone challenging the authority has the BOP
2. The Client’s Autonomy (1.2(a)): decision on any matter that will “substantially affect” client’s rights must be made by the client (lawyer must advise).
a. Settlement or criminal pleas (1.2(a)): lawyer can’t settle or compromise a civil action or enter into a criminal plea without authorization of the client.
1) Presumption: lawyer is presumed to have authority to settle or compromise (rebuttable).
2) Ratification by client: client may ratify unauthorized settlement or compromise by lawyer.
a) Implied: ratification may be implied unless client disavows it within a reasonable time.
b. Dismissal or abandonment of case: client has the sole power to authorize dismissal or end a case on the merits.
1) Client may dismiss at any time: client may dismiss case at any time regardless of what lawyer wants.
2) Dismissal with prejudice: lawyer can’t dismiss an action with prejudice unless client allows.
a) Without prejudice: he may have an implied right to dismiss without prejudice if in the client’s best interest.
