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Legal Profession
University of Mississippi School of Law
Gershon, I. Richard

Legal Profession Outline

Spring 2015/ Richard Gershon

The Attorney Client Relationship

1. Formation and Termination

a. Implied-in-fact Professional Relationships

i. Togstad v. Vesely, Otto, Miller & Keefe

1. Potential personal-injury client came in to law office to see if she could sue a doctor and hospital for medical malpractice

2. Lawyer listened, took down the facts, said a couple things

a. Client said he told her he didn’t think she had a legal case but would discuss it with his partner

b. Lawyer said he told her she didn’t have a case and the firm wasn’t interested in pursuing

3. Client did not consult another lawyer until the SOL had run

4. In malpractice case lawyer said there was never an attorney-client relationship, however, the court said she relied on him to her detriment that she did not have a case

a. Lawyer never told her to seek another opinion and never told her he wasn’t interested in the case b/c firm had no experience with medical malpractice (not b/c case lacked legal merit)

b. Court concluded attny-client relationship was formed and that lawyer’s failure to do even minimal research was malpractice

ii. Restatement § 14: an attorney-client relationship can be formed by implication from the conduct of the parties as long as two conditions are satisfied:

1. “client” behaved in such a way that a reasonable person in the lawyer’s position would believe that she was being asked to provide legal services and;

2. “lawyer” behaved in such a way that reasonable person in client’s position would believe lawyer either agreed to provide legal services or refused to do so

b. Quasi-Client Relationship

i. In full-on professional relationship, express or implied, lawyer has professional obligations, duties known as “Four C’s:”

1. Competence: a lawyer shall provide competent representation to a client; competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation (Rule 1.1)

2. Communication: informing the client of all facts the client would need to know to make informed decisions about the matter (Rule 1.4); might also call this the duty of candor, “a lawyer shall exercise independent professional judgment and render candid advice” (Rule 2.1)

3. Confidentiality: keeping absolutely secret all information learned in the course of representing the client, and not using this information in any way that would have an adverse effect on the client (Rule 1.6)

4. Conflicts: Refraining from representing other clients in the present time or in the future whose interests are opposed in certain ways to the first client, and refraining from self-dealing (Rules 1.7, 1.8) also known as duty of loyalty

ii. In quasi-client relationship, lawyer owes subset of these duties to client: “to the extent a non-client entrusts some legal interest to a lawyer, in circumstance when it would be reasonable to do so, the lawyer has duties to that person or entity in respect of that interest”

1. Less than a full client but not a stranger, thus, quasi-client

2. Lawyer does not necessarily represent a full range of interest with quasi-client so you only owe those duties which are applicable

3. Common denominator in these cases is client intended to consult with the lawyer in a professional capacity and there was a transmission of confidential information w/expectation lawyer would keep it confidential

c. Prospective Clients

i. “Prospective Client:” anyone who discusses with a lawyer the possibility of forming a professional relationship (Rule 1.18(a))

ii. lawyers should be careful not to learn confidential information from prospective clients to avoid being disqualified from representing adverse parties in future

1. Rule 1.18, Comment 2 advises lawyers to provide “clear and reasonably understandable warning and cautionary statements” on electronic marketing materials so prospective clients know lawyer is not undertaking to represent them when they communicate information to the lawyer

d. Entity-Constituent Representation

i. “Organizations as clients:” when representing an organization/entity as a client (corporation, partnership, unincorporated association [union, etc.]) the lawyer represents the entity itself, acting through authorized constituents (Rule 1.13(a))

1. any people that the lawyer deals with in the course of representation is not their client

2. “constiuents:” entity’s officers, directors, employees and shareholders (Rule 1.13, comment 1)

ii. Problem is people lawyer comes in contact with may believe that lawyer is looking out for their interests as individuals

iii. if lawyer does something to cause a constituent to reasonably believe that the lawyer is acting the individual interests of the constituent, the lawyer may either have an implied-in-fact or quasi-client relationship with the individual

1. means lawyer may have a conflict of interest b/c impossible to satisfy interests of entity and of individual

2. rule requires lawyers to explain to constituent that client itself is the entity and not any individual, officers, employees, or any others in org. (Rule 1.13(f))

e. Termination of the Professional Relationship

i. Mandatory Withdrawal (Rule 1.16(a)): lawyer must refuse to begin representing a client or withdraw from an existing attny-client relationship if lawyer is fired by the client, unable, by reason of a physical or mental disability, to represent the client adequately, or the representation would result in violation of rules of prof. conduct or other law

1. Client Fires Lawyer – if client terminates professional relationship, lawyer is obligated to withdraw (Rule 1.16(b)(3))

2. If case is in litigation the client must seek courts permission (Rest. §31, cmt. C)

ii. Lawyer Fires Client (Rule 1.16(b)(1)): a lawyer can fire a client for any reason as long as it does not create a “material adverse effect on the interests of the client”

1. Lawyer may fire client even if there are material adverse effects if it falls within six situations enumerated under Rule 1.16(b)(2) – (7):

a. Client persisting in course of action that lawyer reasonably believes is criminal or fraudulent (Rule 1.16(b)(2))

b. Discovery that the client has used the lawyers services to perpetuate a crime or fraud (Rule 1.16(b)(3))

c. Fundamental disagreement with client choice of actions (Rule1.16(b)(4))

2. Lawyer seeking withdrawal during litigation must seek ct. approval (1.16(c)) –

a. usually accomplished by motion to substitute counsel, if court denies lawyer is obligated to continue to represent the client

b. lawyer must withdraw if continuing representation will result in a violation of disciplinary rules or other law (Rule 1.16(a)(1))

f. Duties Upon Discharge

i. Lawyer still has ongoing duties to client after end of relationship

1. Withdrawal – lawyer must take steps to minimize damage to client including giving notice to the client, allowing time for client to secure substitute counsel, and returning papers and property that belong to client (R

agree, lawyer should consult with client and come up with mutually agreeable solution (MR 1.2, cmt. 2; MR 1.4, come 3). If something is truly a “means” decision, however, client does not have veto power over the attorney.

Rule 1.4 (a)(3)

A lawyer must keep the client reasonably informed about the status of the matter. This is an ongoing, on-way communication obligation. The lawyer must, on her own initiative, periodically update the client on how things are going, but need not await the client’s instructions or advice on how to proceed.

Rule 1.4(a)(4)

A lawyer must comply with reasonable requests for information. This is a one-way communication obligation, triggered by client’s reasonable request.

Rule 1.4 (a)(5)

A lawyer must consult with the client about any relevant limitation, imposed by the Model Rules or other law, on the lawyers conduct. This is a 2-way obligation (“consult” instead of “inform”), but there’s really nothing for client to say.

ii. Rule 1.4(b): lawyer must permit client to participate meaningfully in representation

d. Interference with Attorney-Client Relationship

i. Anti-Contact Rule

1. Rule 4.2; Rest § 99: A lawyer is forbidden from talking to persons who are involved in a matter if the lawyer knows that those persons are represented by counsel in connection with the matter.

a. In order for lawyer to be disciplined, he must know person is represented (actual knowledge, not circumstantial but must be careful b/c actual knowledge can be inferred from the circumstances) MR 4.2, cmt. 8

2. Rule 4.2, cmt 3: Client cannot waive anti-contact rule, only lawyer can consent to other lawyer’s communication with his client

3. Applies to communications with 3rd parties (paralegals, investigators, etc.)

a. Cannot instruct another to make contact for you

b. MR 5.3(c): lawyer is responsible for conduct of non-lawyer employee if that person engages in conduct that would be a violation of the rules, and the lawyer directed the conduct, ratifies it aft her fact, or had direct supervisory authority over the employee and an opportunity to prevent the action

ii. Anti-Contact where Entity is the Client

1. Anti-contact applies to clients who are entities, problem is figuring out which employees should come under the protective scope of the rule

a. Rest. §100(2)(a) – those whose acts are binding on the corporation

b. Rest. §100(2)(b) – employees whose acts or omissions can be imputed to the corporation for the purposes of liability

c. Rest. §100(2)(c) – employees whose statements are treated as binding by applicable rules of evidence

2. In general, former employees are not covered by the no-contact rule (Rest. §100, cmt. g)