The Attorney Client Relationship
1. WHAT IS THE ATTORNEY CLIENT RELATIONSHIP?
Background on the relationship
An AC relationship can be formed as long as two circumstances occur:
1. The 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. The lawyer behaved in such a way that a reasonable person in the client’s position would believe that the lawyer had either agreed to provide legal services or at least not refused to do so.
2. HOW IS THE ATTORNEY CLIENT RELATIONSHIP FORMED?
Ways to Form the AC Relationship
Also, once the Attorney-Client relationship is formed, the relationship is ongoing unless and until the client understands, or reasonably should understand, that he can no longer depend
1. Traditional – Client walks into atty’s office and asks for legal help, and the client pays.
Showing that a fee has been paid is a strong presumption that there is a relationship.
Note: It is negligent for an atty to allow a client to walk out the door, when you know that something important is going to happen in the case, i.e. the SOL is running out. To safeguard yourself, you need to make it clear that you are not the client’s atty.
2. Appointed Attorney – The attorney can also be appointed. Money need not change hands to form the AC privilege. A lawyer appointed by a court to represent an indigent criminal defendant has a professional relationship with the D.
3. Intermediary – An agent or a third party can form a relationship between a firm and other people who the lawyer has never met. For example, Lawyer gives advice to A, knowing that A will pass on the information to B and C. Later, Lawyer files papers for B and C. There is a relationship here.
4. Implication of Representation – The atty acts in a way that a reasonable client would think that this person is his atty. Upjohn.
5. Class Actions – Class action lawyers have duties to all class members whose names they will never know.
3. HOW IS THE ATTORNEY-CLIENT RELATIONSHIP DISSOLVED?
Ways to End the AC Relationship
1. The Lawyer MUST Quit – This is MRPC 1.16(a), and the lawyer must call it quits when the lawyer cannot adequately represent the client because of disability, conflict of interest, or it would be illegal/unethical.
2. The Client Fires the Lawyer – A client can almost always fire his lawyer, unless it is too close to trial. Also, a client may almost always fire a retained lawyer, but they are usually more limited when they are represented by in-house counsel or a CAA.
3. The Lawyer Fires the Client – A lawyer can always fire his client as long as it does not create a material, adverse impact on the client. In addition, a lawyer may fire his client even when this would have a material, adverse impact in one on the six exceptions (MRPC 1.6(b) (2-7).
4. Drift/Erosion over Time – After some time, the AC relationship may end. But, a lawyer can find himself in trouble if the client can reasonably believe that the lawyer was looking after the client’s affairs. To avoid this, lawyers should end the relationship in writing. What is important is the client’s subjective and reasonable belief of whether or not a relationship exists. If the lawyer represented the client over a number or years, for a series of things, then the court is more likely to conclude that a relationship is ongoing.
MRPC Rule 1.16 – Declining or Terminating Representation
1. Non Permissive Withdrawal – (Paragraph (a)) – You cannot represent someone if it will be in violation of the rules or the law, you cannot physically or mentally do the work, or you, as a lawyer, is discharged.
A. A retained lawyer can be discharged by the client for any reason, as long as the
dismissal will not impede any on going litigation.
The only exception to this rule is if the client wants to discharge the atty during or
immediately before the trial.
B. For attorneys who are appointed, the client cannot fire them. The only way they
can rid of the lawyer is for the court to discharge appointed lawyers. A lawyer’s
statement that professional considerations require termination of the appointment
ordinarily should be accepted as enough without disclosing any
can also seize a client’s funds and property (including his/her file) until their debt is paid to them.
A majority of courts and state legal ethics committees considering a client’s access to the atty’s file in a represented matter, upon termination of the AC relationship, where no claim for unpaid legal fees is outstanding, presumptively accord the client full access to the entire atty’s file on a represented matter with narrow exceptions. This is the rule in Michigan. The Restatement agrees with this approach, saying that a former client is to be accorded access to inspect and copy any documents possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.
Non-access is permissible as to firm documents intended for internal use and review.
The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved. Such documents are unlikely to be of any significant use to the client or the successor attorney.
Michigan Work Product Rule
The Michigan Court Rule says that work product is not discoverable. Work product is a lawyer’s mental impressions, conclusions, opinions, or legal theories concerning litigation, minus a showing of absolute necessity. Under work product rules, this information may also be protected from the client under Michigan law.
The Ongoing Attorney Client Relationship
1. THE LAWYER AS AN AGENT
MRPC 1.2 – Scope of Representation
The basic idea behind this rule is that the lawyer must abide by the client’s decisions regarding the objectives of representation, and he must consult with the client