#11719 - Client Lawyer Relationship - Ethics

Traditional model: the lawyer is a dominant figure, paternalistically making decisions for a passive client

Participatory model: both the client and the lawyer paly active roles

Hire gun model: the client is dominant and the lawyer is passive.

MR 1.2 instructs lawyers to abide by a client’s decisions concerning the objectives of the representation and to consult with the client as to the means by which they are to be pursued.

A trustee who was fired by a labor union conferred with an attorney about a wrongful discharge suit. The attorney also represented a company in a dispute with the union and later filed a fraud action on its behalf against the trustee but withdrew because of the appearance of impropriety. The court concluded that the attorney violated Ind. R. Prof. Conduct 1.7(a) by representing the trustee when that representation was adverse to the company's interests and neither client had given consent. An attorney-client relationship was formed as the attorney provided legal advice and should have known that the client thought that the attorney was representing him. The fraud action violated Ind. R. Prof. Conduct 1.7(b), 1.9(a). Because the misconduct caused no real harm to either client, a private reprimand was appropriate. The attorney in the second case violated Ind. R. Prof. Conduct 1.9(a) because he represented a lawyer in a malpractice action filed by the attorney's former client who had consulted him about the claim that gave rise to the alleged malpractice. A private admonition was a proper sanction as the attorney had not taken advantage of information obtained from the client.

Attorney-client relationship is created whenever a person manifests the intent to create such a relationship and the lawyer either consents or fails to manifest a lack of consent. Factors to consider include:

• Whether the putative client sought legal advice and whether the lawyer provided it.

• Whether the client reasonably believed that such a relationship was being formed

• Whether the client has shared confidential information with the lawyer.

He was wrong to:

• Talk to the person, because the person is adversarial to his client

• Did not tell the person while he is talking with him that he is not the lawyer

• Tell the person that he is not the lawyer after they talk

The lawyer is bent towards forming an attorney-client privilege.

Note 7 p225, unbundling of legal services: absolute clarity on your scope of representation is important.

Insurance company’s lawyer represents the insured, the lawyer’s client is the insured.

"captive" law firm, is permissible as long as the lawyers exercise independent professional judgment for the insureds (who are, after all, the clients) and as long as the insureds are advised of the arrangement.

When you represent the entity, you represent the entity, not the individuals.

It is ethical to represent the entity and its employee at the same time, you can have your client NY times, and the reporter, because they usually have interests in alignment. However, if the interest is no longer in alignment as the lawsuit develops, you have a duty to disclose.

However, if a lawyer who represents a company finds that the interests of a constituent of the company are adverse to the company’s interests, the attorney should advise the constituent that: (1) there is a potential conflict of interest, (2) the attorney cannot represent the constituent; (3) the constituent may wish to obtain independent counsel; and (4) discussions between the lawyer and the constituent may not be privileged.

Purpose

• Initiates the attorney client relationship

  • Retainer agreement may be signed as a result

• Lawyer explains foundational matters to the client, such as the contemplated scope of representation and the contours of the attorney-client privilege and confidentiality rules.

• Begin to gather facts relevant to the representation

• Learn the client’s goals for the representation

2 kinds of retainer:

• Pays upfront, and then subtracts from the payment. You cannot put that payment into the firm’s account, cannot comingle.

• Flat fee, client pays first half upfront, and it’s nonrefundable. You can put it into the firm’s account.

A judge issued a protective order under Mass. Sup. Jud. Ct. R. 3:07, R. Prof. Conduct 4.2, barring appellant litigant's counsel from ex parte contact with former or future employees of appellee corporation concerning their former employment or pending litigation without leave of court or of opposing counsel. The Massachusetts appeals court justice granted interlocutory review and authorized an appeal. Direct appellate review was granted.

Since former employees were neither actually represented by corporate counsel, nor the type of employee covered by Mass. Sup. Jud. Ct. R. 3:07, R. Prof. Conduct 4.2, the protective order was vacated. The corporation could not invoke Rule 4.2 to claim that all current and former employees were represented, and therefore the protective order was overbroad. Any analysis had to be employee specific. The corporation made no factual showing that the former employees in question were actually represented by a center's counsel. The former employees did not come within any category of employee covered by Rule 4.2. None of them was alleged to have committed the wrongful acts at issue in the litigation. There was no evidence, under their job descriptions or otherwise, that any of them had authority on behalf of the corporation to make decisions about the course of the litigation. They did not exercise managerial responsibility. None of them would have been protected from ex parte contact while an active employee of the center. A change in status from current to former employee did not change the fact that they were not protected by Rule 4.2 from ex parte contact by the litigant's counsel.

• If a lawyer knows that a person is represented by another lawyer in the matter, the consent of that lawyer must be obtained before communicating with that person about the subject of the representation. MR 4.2

  • If the other side is unrepresented, you can talk to the other side.

  • This is called an ex parte contact, it is not allowed when the other side has a lawyer.

• Most courts hold that a lawyer does not need to obtain the organization’s consent to interview its former employees.

Undercover conversations by law enforcement are authorized by law and do not violate the no-contact rule.

Decisions belonging to the client:

• Accept or decline a settlement in a civil case

• The decision whether to appeal from an adverse judgment in a civil case

• In a criminal case

  • The plea to be entered

  • Whether to waive jury trial

  • Whether the client will testify

  • Decision to appeal

In civil cases, a lawyer can decide whether to ask for a jury trial, the Model Rule does not require him to request a jury trial.

The longshoreman was injured during his employment. After collecting compensation benefits from the stevedoring firm for which he worked the longshoreman brought a third party suit against the shipowners. Defendant was his attorney. During the trial, the attorney failed to relay an offer of settlement in the longshoreman's personal injury action. The court of appeals affirmed. The court held that the issue regarding whether the attorney's conduct was unreasonable was properly submitted to the jury. Further, the action was properly assigned to the jury calendar. Finally, the longshoreman was entitled to recover the amount of the settlement offer minus the attorney's contingency fee and the amount of compensation benefits that the longshoreman received. The evidence of negligence was adequate to warrant jury submission. Also, the trial court's instruction on damages was fully consonant with principles of Maine law, as interpreted by the appellate court.

The government obtained a writ of certiorari for review of a judgment of the United States Court of Appeals for the Second Circuit, which granted the petition of respondent prisoner for a writ of habeas corpus. The prisoner had been convicted in a New York trial of first and second degree robbery and second degree assault.

In granting the prisoner's petition for a writ of habeas corpus, the court of appeals determined that the decision of defense counsel to not argue a nonfrivolous issue on appeal resulted both in ineffective assistance of counsel and denied the prisoner's right of equal access to the appellate process. In challenging the judgment, the government argued that precedent did not mandate defense counsel to raise each and every nonfrivolous claim during an appeal, and indeed that often such a rule would impair the effectiveness of an appeal by placing too many claims before the appellate tribunal and watering down the strongest among them. The Court found that there was no requirement that each nonfrivolous claim be raised on appeal. The decision regarding what issues to present was left in the discretion of counsel, who was required to represent his client to the best of his ability. The Court found that appellate counsel met this standard in his representation of defendant.

Petitioner, a self-taught paralegal, represented himself at his jury trial. Petitioner was convicted of embezzlement and filed a notice of appeal with a motion to represent himself. The court of appeals denied his motion because there was no constitutional right to self-representation...