*CA competence requirement Duty to communicate with client Competent representation includes the duty to communicate with client. MR 1.4, CRPC 3-110A, 3-500; BPC 6068(m)-(n) *NO CA rule describing the extent to which client must be informed CRPC 3-500 BP 6068m requires duty to communicate about significant developments in the case Matters that require informed consent Lawyer must promptly inform client of any decision or circumstances that req the client's informed consent Informed consent - client agrees to proposed conduct after the lawyer has sufficiently explained the risks and reasonable alternatives Includes settlement offers Information about status of the matter and means to be used Must keep client reasonably informed as to the status of the matter and means used to achieve the client's objectives Consultation w/ client required except when immediate decision is necessary Request for information When client makes a reasonably request for information, must be done promptly If not possible, then acknowledge request and notify client when info should be avail Consultation about illegal or unethical conduct Must inform client of limits to the lawyer's conduct when the client expects the lawyer to engage in illegal or unethical conduct Special circumstances The amount and kind of information and explanations the lawyer should give to the client depends on the client's situation Ex. Young or diminished capacity If clt is an organization, then the lawyer should communicate with the appropriate officer If established AC relash, then they may agree to limited or occasional reporting Withholding information from client A lawyer may delay the transmission of information to a client if the client would be likely to react imprudently to an immediate communication. BUT the lawyer cannot withhold info to serve the lawyer's or a 3rd person's interest or convenience Duty to supervise Includes: Law students Subordinate attorneys In some cases, other firm partners Paralegals and non attorney staff Contract and other temp lawyers Outsourced legal services Responsibilities of a Subordinate Lawyer A lawyer is always bound by the rules of professional conduct and must always follow the law. MR 5.2 Duties Concerning Debatable Ethics Questions A subordinate lawyer does not violate the rules of professional conduct by acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty Subordinate attorney can defer to a senior lawyer's reasonable resolution of an arguable question of professional duty Duties Concerning Clear Ethics Violation Orders from a supervisory lawyer are no excuse for clearly unethical conduct
The Lawyer-Client Relationship Models of the Relationship Traditional Model Lawyer is the dominant party, assessing the best course of conduct for the client Client is passive, relying on the judgment of the lawyer Lawyer identifies the problem and the solution Participatory or Collaborative Model Lawyer and client share responsibility for success Lawyer actively solicits frequent client input Lawyer tailors options and solutions to the needs of the client Lawyer provides sufficient information to allow client to make informed decisions whenever appropriate Hired Gun Model Client is dominant, calls the shots; lawyer is passive recipient of instructions Nature of the AC Relationship Fiduciary Relationship Agency Relationship Contractual Relationship Express Contract Implied Contract Creating the Relationship An AC relash arises when: Express K: A person manifests an intent that the lawyer provide legal services and the lawyer agrees Implied K: A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake the representation, and the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the services The reasonableness is a question of fact NOT a unilateral relash A tribunal appoints a lawyer to represent a client Trial and appellate courts often appoint lawyers to represent indigent clients and clients with unpopular causes. A lawyer must not seek to avoid these appointments except for good cause. MR 6.2 Good cause examples: Violation of law or disciplinary rule. MR 6.2a Unreasonable financial burden on the lawyer. MR 6.2b Personal Inability to Represent Client Effectively. MR 6.2c Express Contractual Relationship Written Fee Agreement Under MR: Always preferable to have fee agreement in writing. MR 1.5b Must have a writing if contingency fee. MR 1.5c Under CA law: Must have a writing if contingency fee. BP 6147 Must have a writing if fees and expenses will exceed $1000 and client is not a corporation or a former/continuing client where nature of agreement may be implied based on prior work. BP 6148a, d2, d4 A Good Retainer Agreement Specifies: Scope of the services Including any limitations Client's duties Specifies client conduct amounting to a breach of the agreement, such as failing to pay fees or making representation difficult