• The first letter, the first phone call, first court appearance will carry with you as a professional
THE CLIENT-LAWYER RELATIONSHIP
Defining the Attorney Client Relationship
A. Is There a Client Here?
1. To create an Attorney-Client relationship there does not have to be an exchange of money or a retainer agreement.
B. What Duties do You Owe a Client? (Elements of an Attorney-Client Relationship)
a. ABA Model Rule 1.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
a. Attorney-Client Privilege: a rule of adjudicative law protecting information between attorney-client from being offered as evidence.
• Client can waive privilege by having a 3rd party in the room
• The ethical duty applies even if a 3rd party is present or if information is given by 3rd party.
• Ethical duty extends even if the privilege does not.
• Always assert attorney-client privilege when asked to disclose confidential information.
• The duty of confidentiality survives the relationship, even though the relationship has ended.
b. ABA Model Rule 1.6: Confidentiality of Information
(a) Lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosures are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
• Covers information that relates to the representation; does not have to come from the client. Would you know that info “but for” your representation?
• “Impliedly Authorized”—stipulated facts that must be revealed in complaint of defense, also probably includes communication b/w attorneys in firm.
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent reasonably certain death or substantial bodily harm;
(2) To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used the lawyer’s services.
(3) to mitigate, or rectify substantial injury to the financial interests or property of another and that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyers services.
(4) To secure legal advice about the lawyers’ compliance with these Rules
(5) To establish a claim or defense on behalf of the lawyer against the client. Or
(6) To comply with other law or court order.
• Permissive disclosures
• Lawyer’s obligation to the public / third party
Revised Comment 15 and 16: A lawyer must take reasonable precautions to prevent inadvertent or unauthorized disclosures by the lawyer or other persons (i.e. associates, paralegals, or secretaries)
c. ABA Model Rule 1.18: a person who discusses with lawyer about becoming a client (prospective client); lawyer must keep information confidential from initial or beginning communications. “intermediate category of perspective client”
d. Privileged and Ethically Protected Information:
(1) Basic Elements: (a) communication between attorney-client (b) related to the representation
e. Entity Clients: to determine whether communication of an employee or officer to the entity’s attorney is protected by the attorney-client privilege apply one of the following tests:
(1) Control Group Test: Communications between the attorney and the upper echelon of decision makers in the corp., usually those in management positions who act on attorney’s advice; those with substantial control
(2) Subject-Matter Test (Upjohn): Communications between employees and attorney concerning matters within the scope of employees’ duties made for purpose of securing legal advice. Under this test it does not matter who makes the communication (low-level employee or management); also does not require the employee’s communication to be about something that he or she did.
(3) Functional Test: Must be communications between employee and attorney discussing the employee’s own conduct performed during their duties (scope of employment) and the communication must be made to assist the attorney in accessing or responding to a charge made based on the employee’s conduct.
f. Work Product Privilege: Protects the work product of attorney prepared in preparation for litigation. It is discoverable when there is a substantial need by the other party and it can be given without creating an undue hardship on the party having to provide the work product.
• There is an ABSOLUTE PRIVILEGE for anything that reveals the mental impressions, opinions, or theories of an attorney.
• Court will separate factual information not covered by privilege from attorney’s mental impressions, opinions, etc.
Note: Attorney can waive the privilege, Client can waive the privilege. Also the attorney can waive on behalf of the client.
g. Exceptions to Attorney-Client Privilege
(1) Crime-Fraud: There is no ACP if client seeks your advice to commit a crime/fraud.
• Purcell case: only apply if client sought attorney’s advice
• ABA Model Rule 1.2 (d): “a lawyer shall not counsel a client to engage, or assist client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct…”
• Comment 10: when the client has already begun and continues conduct that is criminal fraudulent when the attorney learns of the conduct, the attorney is required to make a noisy withdrawal which lets the public know you have withdrawn and that you disaffirm anything that connects you to the client.
(2) Public Policy: Attorney-Client privilege survives death, ethical duty survives representation. Swidler & Berlin v. U.S. (O’Connor dissented: “where exoneration of a criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication”
3. Agency Principles Apply: usually seen in realm of procedural forfeitures
a. Taylor v. Illinois: attorney was sanct
proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(5) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.
C. Autonomy of Attorneys and Clients
1. Can the client dictate tactical decisions?
a. Rule: lawyer has the ability to determine what arguments should be made, but remember the result ultimately affects the client.
2. Can the lawyer use means other than those requested by the client?
a. Here, the court said the atty could not use other means other than the one requested by the client.
b. How do you determine? Ask, “What matters to the client?”
D. Terminating the Relationship
1. Rule 1.16, Declining or Terminating Representation
a. Mandatory Withdrawal Required:
(1) representation will result in the violation of the rules of prof. conduct or other law
(2) lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent to client
(3) lawyer is fired by the client
b. Permissive Withdrawal:
(1) withdrawal can be accomplished w/o material adverse effect on the interests of the client
(2) client acts in a criminal or fraudulent manner or client uses lawyer’s services to perpetrate a crime or fraud
(3) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement (this opens it up so that lawyer can disagree over means or objective)
c. Upon termination a lawyer shall take steps … to protect a client’s interests, such as … refunding any advance payment of fee or expense that has not been earned or incurred
protecting the client-lawyer relationship against outside interference
A. Communicating with Another Lawyer’s Clients
1. Rule 4.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by the law to do so.
• Subject of the representation: anything involved in the matter; better to steer clear of friendly conversation
• Knows to be represented: must have a degree of knowledge but one cannot close their eyes to the obvious
• When authorized by law:
• Civil matter: summons/complaint; notice of claim