PROFESSIONAL RESPONSIBILITY OUTLINE
ATTORNEY-CLIENT RELATIONSHIP:
Formation—Restatement §14. Relationship arises when:
“Client” behaves in such a way that a reasonable person in the lawyer’s position would believe he’s being asked to represent (person manifests intent that person wants lawyer to represent) AND
“Lawyer” behaved in such a way that a reasonable person in the client’s position would believe that the lawyer agreed to provide legal services or at least not refused to do so (lawyer manifests consent or fails to manifest lack of consent AND lawyer knew or should have known that person relied on the lawyer to provide services). OR
Court appoints lawyer to provide services.
Shown by:
i. Express agreement
1. Indicate consent by performing actions
ii. Implicit agreement
1. Accepted confidential info
2. Agent for lawyer gave consent (secretary, paralegal)
3. Client reasonably relied on lawyer to provide services and lawyer should have known of this reliance, but didn’t tell the client that he wouldn’t provide services
Cases:
i. Togstad v. Vesely, Otto, Miller & Keefe: Was there an attorney-client relationship? Yes, because “client” reasonably relied on what she thought the lawyer had said about the viability of her case.
ii. Clark Capital Management Group v. Annuity Investors Life Ins.: Was there an attorney-client relationship? No, because client (another lawyer) was sophisticated enough to understand that attorney was not providing legal services during initial consultation.
iii. Perez v. Kirk & Carrigan (lawyer from the website case): Was there an attorney-client relationship when the lawyers, who represented Perez’s company, told Perez that they represented him, too? Yes, because lawyers expressly said they were representing Perez.
iv.
Types of clients:
i. Quasi-client (implied attorney-client relationship)—lawyer owes same kind of duties she would owe a regular client if lawyer had purposefully intended to form a relationship.
1. Main way relationship is formed:
a. Client intended to consult lawyer in a professional capacity AND
b. Client shared confidential info with the expectation that lawyer would keep if confidential.
2. Prospective clients:
Rule 1.18
ABA
FL
(a)
Discusses possibility of forming attorney-client
relationship is prospective client
Same as ABA
(b)
Even if no attorney-client relationship results, attorney
can’t use or reveal info from consultation w/ prospective
client
(c)
Lawyer can’t represent a client in the same or substantially
related matter if the client’s interests are adverse to a
prospective client’s interests IF the lawyer has info from the
prospective client that is harmful to the client.
If a lawyer is disqualified under this rule, then his firm is also
disqualified.
(d)
EXCEPTION TO (c):
Lawyer can represent if:
1. Both client and prospective client give informed consent
2. Lawyer took precautions to prevent exposure to more
info than was reasonably necessary to represent prospective
client AND
(i) disqualified lawyer is timely screened from participating
and gets no fee
(ii) written notice is promptly given to potential client
Comment 4: don’t get any more confidential info from prospective client than you need in order to determine whether you’ll take the case.
Interference with attorney-client relationship: MR 4.2
Lawyer can’t communicate with a person about a matter when the lawyer knows the person is already represented in the matter without the other lawyer’s consent. Exception:
i. To give notice
ii. Service of process
Lawyer responsible for terminating contact when he finds out contact is with prohibited person.
Includes people on the same side of the lawsuit, such as co-defendants. For example, D1’s lawyer cannot talk to D2 or P directly w/out their lawyers’ permission.
Mens rea for lawyer—has to have known person was represented, but knowledge can be inferred from circumstances.
Protection is not waivable by the client. Lawyer has to give permission for opposing counsel to talk to her client.
Also applies to directed communications through 3rd parties (lawyer’s agents). Lawyer herself doesn’t talk to other client, but instructs someone else to do so. MR 5.3(c)
Criminal prosecutions:
i. MR 4.2: Authorized by law exception—Govt’s lawyers can talk to defendants up to the point the defendant is indicted or arraigned. When formal judicial proceedings start, 6th Amend. right to counsel protection kicks in.
1. 5th Amend.: No custodial interrogations outside t
f the relationship. Unusually high duty of care.
2. Courts don’t tolerate any kind of self-dealing, divided loyalties, or breaches of trust.
ii. Have 3 kinds of authority to act on behalf of client:
1. Express: granted by the actual agreement between the parties, often set down in a formal instrument.
2. Implied: Authority necessary as part of agent/ principal relationship. Agent can’t do its job without this authority.
3. Apparent: Action by the principal creates this authority. Agent appears to have authority on behalf of agent, but doesn’t actually have that authority. Principal may have revoked without notice to agent, never granted authority to begin with.
Fees:
Fees governed by law of contracts and by MR.
Contracts:
i. Reasonableness
ii. Unconscionability
iii. Breach of fiduciary duty
iv. Bars usually allow law of contracts to deal with lawyer-client fee disputes.
MR 1.5:
i. No excessive fees—have to show unreasonableness. Factors:
1. Time, skill & labor req’d, novelty/difficulty of question
2. Likelihood lawyer will have to forgo other employment
3. Customary local fees
4. Amount involved v. results obtained
5. Time limitations imposed by client or circumstances (emergencies)
6. Nature/length of relationship w/ client
7. Experience, reputation, ability of lawyer
8. Fee fixed or contingent? Who bears the risk?
9. Factors not exclusive, may not all be relevant
ii. If the client had a free and informed choice before entering into the agreement, and the fee is within the range customarily charged by lawyers in similar representations, it is almost certainly reasonable.
Retainers:
i. General retainer: Client is paying lawyer to be available to perform services if needed, but no specific representation is contemplated.
ii. Deposit or fund for fees: Client is putting down a deposit or establishing a fund from which the lawyer will draw down fees as they are earned.
Lawyer can require an up-front payment, which will be put into a trust account. Lawyer then takes fees out of the trust account as they are earned. Anything left in the trust account after the representation is done goes back to the
