LEGAL PROFESSION BALDWIN FALL 2016
Exam Tips:
Focus on key issues
Cite rules you are applying and any cases/opinions you are relying on
Work all/most of the facts into the analysis one way or another
Take a step back and use a practical approach
Reach conclusions and support them
Limit discussions of side issues/issues not squarely raised by the facts
A-C RELATIONSHIP—SCOPE/ALLOCATION OF AUTHORITY/FORMATION
Scope of Rep. and Allocation of Authority Between C and L
MR 1.2: Scope of Rep. and Allocation of Authority Between C and L
(a) Subject to (c) and (d), L shall abide by C’s decisions concerning the objectives of rep. and, as required by MR 1.4, shall consult with the C as to the means by which they are to be pursued. L may take such action on behalf of C as is impliedly authorized to carry out the rep.. L shall abide by C’s decision whether to settle a matter. In a criminal case, L shall abide by C’s decision, after consultation with L, as to a plea to be entered, whether to waive jury trial and whether the C will testify.
NOTE: C has the ultimate authority to determine the purposes to be served by legal rep. w/in limits imposed by law and L’s professional obligations (BUT this rule does not say how disagreements should be resolved; if efforts to find a resolution are unsuccessful, L may w/draw from rep. or C may discharge L)
See also Restatement § 22: Authority Reserved to a C
(1) As between C and L, subject to (2) and § 23, the following and comparable decisions are reserved to C except when C has validly authorized L to make the particular decision:
whether and on what terms to settle a claim;
how a criminal D should plead;
whether a criminal D should waive jury trial;
whether a criminal D should testify; AND
whether to appeal in a civil proceeding or crim. prosecution.
(2) C may not validly authorize L to make the decisions described in (1) when other law (i.e. crim. pro. rules governing pleas, jury-trial waiver, and D testimony) requires the C’s personal participation/approval.
(3) Regardless of any contrary contract w/ an L, a C may revoke L’s authority to make the decisions described in (1).
See also Restatement § 23: Authority Reserved to an L
As between C and L, L retains authority that may not be overridden by a contract w/ or an instruction from C:
(1) to refuse to perform, counsel, or assist future or ongoing acts in the rep. that L reasonably believes to be unlawful;
(2) to make decisions or take actions in the rep. that L reasonably believes to be required by law/an order of a tribunal.
But see Restatement § 21: Allocating the Authority to Decide Between a C and L
As between C and L:
(1) C and L may agree which of them will make specified decisions, subject to the requirements stated in §§ 18, 19, 22, 23, and other provisions of this Restatement. The agreement may be superseded by another valid agreement.
(2) C may instruct L during the rep., subject to the requirements stated in §§ 22, 23, and other provisions of this Restatement.
(3) Subject to (1) and (2), L may take any lawful measure w/in the scope of the rep. that is reasonably calculated to advance C’s objectives as defined by the C, consulting w/ the C as required by § 20.
(4) C may ratify an act of L that was not previously authorized.
Blanton v. Womancare (Cal. 1985) = Med. mal. case, P’s attny submits her dispute to binding arbitration and signs a stipulation to dismissing a supervising dr. from her case w/out getting permission from P, trial court affirms the validity of the binding arbitration agreement, and arbitrator rules for Ds—Court holds that absent express authority, it is est. that an L does NOT have implied plenary authority to enter into contracts on behalf of his C, bc L, merely by virtue of his employment as such, has no apparent authority to bind C to an agreement for arbitration[1], and thus finds for P bc she did not give express authority to L and did not ratify L’s actions, so arbitration agreement wasn’t binding
(b) L’s rep. of C, including rep. by appt., does not constitute an endorsement of C’s political, econ., social or moral views or activities.
POLICY: legal rep. shouldn’t be denied to ppl. whose views might be unpopular; rep. doesn’t signify approval of those views
(c) L may limit the scope of the rep. if the limitation is reasonable under the circumstances and C gives informed consent.
*L can limit rep. to terms that may exclude specific means that might otherwise be used to accomplish C’s goals bc they are too costly or L finds them repugnant/imprudent
See also Restatement § 19: Agreements Limiting C or L Duties
(1) Subject to other requirements stated in this Restatement, C and L may agree to limit a duty that L would otherwise owe to C IF:
(a) C is adequately informed and consents; AND
(b) the terms of the limitation are reasonable in the circumstances.
(2) L may agree to waive C’s duty to pay or other duty owed to L.
(d) L shall not counsel C to engage, or assist C, in conduct L knows is criminal/fraudulent, but L may discuss the legal consequences of any proposed course of conduct with C and may counsel/assist C to make a good faith effort to determine the validity, scope, meaning or application of the law.
NOTE: Once the crim./fraudulent conduct has begun, L must be careful not to assist C in continuing that conduct; L must w/draw and in some cases give notice of the fact of w/drawal and disaffirm any product produced in helping w/ the illegal/fraudulent conduct
MR 2.1: Advisor
In representing C, L shall exercise independent professional judgment and render candid advice. In rendering advice, L may refer not only to law but to other considerations such as moral, econ., social and political factors that may be relevant to C’s situation.
*Scope of Advice: L may put advice in as acceptable a form as honesty permits but should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to C—Purely technical advice may be inadequate and it is appropriate for L to refer to relevant moral and ethical considerations as well (L may also have to refer C to a professional in another field)
Restatement § 18: C-L Contracts
(1) A contract btwn L and C concerning the C-L rel., including a contract modifying an existing contract, may be enforced by either party IF the contract meets other applicable requirements, except that:
(a) if the contract/modification is made beyond a reasonable time after L has begun to rep. C in the matter… C may avoid it unless L shows that the contract and circumstances of its formation were fair and reasonable to C; AND
(b) if the contract is made after L has finished providing services, C may avoid it if C was not informed of facts needed to evaluate the appropriateness of L’s comp. or other benefits conferred on L by the contract.
(2) A tribunal should construe a contract btwn C and L as a reasonable person in the circum
confidential info. that could be significantly harmful to the prospective C in the matter, except that such a rep. is permissible IF:
(a)
(i) any personally prohibited L takes reasonable steps to avoid exposure to confidential info. other than info. appropriate to determine whether to rep. the prospective C, AND
(ii) such L is screened as stated in § 124(2)(b) and (c); OR
(b) both the affected C and the prospective C give informed consent to the rep. under the limitations and conditions provided in § 122.
Cal. State Bar Committee on Professional Responsibility and Conduct Opinion 2003-161
Under what circumstances may a communication in a non-office setting by a person seeking legal services from L be entitled to protection as confidential C info. when L accepts no engagement, expresses no agreement as to confidentiality, and assumes no responsibility over any matter?
3 scenarios:
Stranger approaches L in courthouse hallway, asks if L is an attny, tells L about burglaries he was involved w/ w/ Doe but says he did the first one alone, L declines to rep. him—Later Doe wants to hire L to rep. him in burglary charges
At party, man approaches L after learning he’s an attny, tells L that insurer won’t pay for flooding, L tells the man he can’t represent him—Later L’s client, the insurance co., assigns defense of the man’s claim to L
L’s cousin calls him about wrecking his grandma’s car and wondering whether it will be a problem w/ her estate, L says he cannot rep. him—Later family hires L to probate the estate, including obtaining comp. for the car
2-part analysis:
1st: Do these scenarios result in the formation of an A-C rel., either expressly or impliedly? (OBJECTIVE TEST)—The 3 situations do not involve either express or implied formation of an A-C rel.
Express assent: L verbally agrees to represent C
Implied assent: See factors, above, to consider in determining whether an implied-in-fact A-C rel. exists, looking at the totality of the circumstance
2nd: If no A-C rel. was formed, does the L nevertheless owe a duty of confidentiality to any of the speakers bc L, by words or conduct, may have manifested a willingness to engage in a prelim. consultation for the purpose of providing legal advice/services and confidential info. was communicated to L? = Even if an A-C rel. was not formed, it is still possible that L owes a duty of confidentiality to an individual bc they engaged in confidential consultation w/ L’s express or implied assent
[1]Agency Theory = Principal is bound by actions of her agent only if agent had either implied actual authority (implied by law) OR apparent authority (that which Ls are normally authorized to do in the course of lit. manifested by the C’s act of hiring the L) to enter into the agreement on the principal’s behalf