OVERVIEW OF LEGAL ETHICS & INITIATING THE LAWYER-CLIENT RELATIONSHIP
Lawyers Basic Duties
1. Rule 1.1 → Competence
a. Legal Knowledge and Skill
b. Thoroughness of Preparation
1. Adequate legal inquiry/factual analysis of the problem
c. Must remain competent (keep up with the law)
d. Might have obligation to inform prospective client about law if going to lose rights (if not become client)
2. Rule 1.2. → Scope of Representation
a. 1.2(a)
1. Client controls objectives
a. Makes decision as to whether to accept settlement offer
2. Lawyer controls the means (shall consult w/client regarding means)
a. Professional discretion
1. What if Client wants to use “loser” argument?
a. Can be a tactical decision
b. Should consult w/client
b. 1.2(c) → Lawyer may limit objectives if client consents after consultation
c. 1.2(d) → Lawyer shall not counsel or assist client in conduct lawyer knows is criminal or fraudulent
1. May discuss legal consequences of an action
3. Rule 1.3 → Diligence
a. If asked to do something by client need to do it
b. Pursue matters required to vindicate client’s claim
c. Not bound to press for every advantage
1. Rule 1.2 → professional discretion in determining means
d. Prompt attention
4. Rule 1.4 → Communication
a. 1.4(a) → keep client reasonably informed, promptly comply w/requests for info
b. 1.4(b) → Need to explain matter to client so that client can make informed decision as to representation
1. Even if client delegates authority should keep advised of matter
2. Must inform of settlement offers (plea proffer)
5. Rule 1.6 → Duty of Confidentiality
a. Arise whether atty/client relationship forms or not
6. Rule 2.1 → Advisor
a. May not only counsel based upon legal issues, may also give moral, social, political, economic factors
Does Client’s Motive Matter?
1. Rule 3.1 → Must have meritorious basis for claim
a. Must be careful not to underestimate client’s objectives, just b/c he is pissed off
b. 3.1, cmt 2 → action is frivolous if the client takes the action primarily to harrass
2. Rule 2.1 → Can advise client on more than legal matters
Case
3. People v. Bloom
a. Issue → Client autonomy
b. Δ wants to be pro se during penalty phase of trial
1. Told judge he would not put up a defense to death penalty and would agree w/prosecution
2. Hope that it would speed up appeal
c. Decision → Judge
d. Prosecution → probably object
1. May effect validity of verdict
2. May result in mistrial/reversal
3. Procedural unfairness
4. State has interest in correctly punishing
e. What are Δ’s Lawyer’s Obligations to Δ?
suing an objective that the lawyer considers repugnant or imprudent
4. (b)(4) → Client fails an obligation
5. (b)(5) → Representation will result in unreasonable financial burden on lawyer
ATTORNEY/CLIENT PRIVILEGE & WORK PRODUCT IMMUNITY
Attorney Client Privilege
a. General
1. Privilege belongs to the client → lawyer cannot waive w/o client’s consent
2. Evidentiary privilege (Defense to request for info)
3. Only comes into play when raised
4. Generally not favored by the courts
5. Identity of client could be privileged (if in and of itself could connect to the crime)
6. Privilege Policy
a. Encourage clients to be candid with lawyers
b. Society’s interest against Privilege
1. May prevent prosecution (shield evid)
d. Privilege applies after death
1. Swindler & Berlin v. U.S. (p.122)
2. Typically waived for testator to determine intent of a will
3. Unless some issues of consent or where countervailing interest is so great
b. Restat. 3rd §68 → Criteria for Asserting Privilege
1. Communication (oral/written)
