Beginning Attorney Client Relationship

Rule: Attorneys have no duty to accept representation.

Except: When Appointed by Court.

Rule: Attorneys have duty to reject when:

- Violation of Law
- Disciplinary Rule
- Frivolous claim
- Not competent to handle the matter

Rule: In litigation withdrawal requires court permission.

Must Refuse:
- Motive to harass or injure
- Frivolous case
- Incompetent or too busy
- Personal feelings may impair effective counsel
- Lawyers mental or physical condition impair effective counsel

May Withdraw:
- Any reason
o Without material adverse effect on client interest
o Or, if client consents

- Client Persists in Criminal or Fraudulent Conduct

o Using services, may
o Lawyers assistance, must
- Client Has Used Attorney's Services to Commit Past Crime or Fraud
- Client's Objective Is Repugnant or Against Lawyer's Beliefs
- Client Breaks Promise to Attorney
o client substantially fails to fulfill an obligation to the attorney
o warned that the attorney will withdraw unless it is fulfilled
- Financial Hardship for Attorney
- Client Will Not Cooperate
- Other Good Cause

Procedure to Withdraw
- permission of the tribunal before withdrawal
- reasonable notice
- time to obtain another attorney;
- Refunding attorneys' fees paid in advance
- Returning all papers and property

LAWYER'S DUTIES OF COMPETENCE AND DILIGENCE

COMPETENCE
- legal knowledge, skill, thoroughness,
o The complexity and specialized nature of the matter
o The lawyer's general experience;
o The lawyer's training and experience in the field in question
o The preparation and study the lawyer is able to give the matter
a lack of legal knowledge or skill really means a failure to seek it
- and preparation
- reasonably necessary for the representation

DILIGENCE
- reasonable diligence and promptness
- dedication and commitment to the client's interests and
o with zeal in advocacy on the client's behalf
- control workload
o adequately handled each matter
Promptness
- devastating to Clients Interest
o court-ordered deadline missed
o statute of limitations permitted to run
- client needless anxiety
o undermine confidence in trustworthiness

SINGLE VIOLATION SUFFICIENT TO IMPOSE DISCIPLINE

MALPRACTICE LIABILITY
A malpractice action differs from a disciplinary matter in three ways:
In a malpractice action:
(i) the forum is a civil court, not a disciplinary tribunal;
(ii) the attorney's adversary is an injured plaintiff, not the state bar; and
(iii) action is to compensate the injured plaintiff, not to punish the attorney, and not to protect
the public from future wrongs.

Legal ethics rules are for disciplinary purposes.

- Not designed to be a basis for civil liability
- lawyer's breach of an ethics rule does not automatically or presumptively mean that
the lawyer has committed malpractice
- Courts regard an ethics violation as relevant evidence that conduct was below the
appropriate standard of care.

Theories of Malpractice Liability

- Intentional Tort
o fraud,
o misrepresentation,
o malicious prosecution,
o abuse of process, or
o misuse of funds
- Breach of Fiduciary Duties
An attorney acting as a fiduciary for the client owes the client all of the
customary duties of a fiduciary, including:
o loyalty,
o confidentiality, and
o honest dealing
- Breach of Contract
o express oral agreement
o implied promise to use
 ordinary skill and care to protect the client's interests
- Negligence
o Duty of Care
 Standard of Care
 competence and diligence normally exercised by attorneys in
similar circumstances
o Breach of Duty of Due Care
 Errors of Judgment
 An attorney is not liable for "mere errors in judgment" if the
judgment was well-informed and reasonably made
 Knowledge of Law
 An attorney is expected to know the ordinary, settled rules of
law
o Legal Causation
 injury would not have happened but for the defendant's negligence
o Damages
 Plaintiff must prove damages
 Direct
 Indirect if foreseeable
Liability for Negligence of Others
The ordinary principles of respondeat superior apply in suits for professional negligence.

Thus, an attorney can be held liable for injuries caused by a negligent employee associate when
acting within the scope of employment.

Contracting with Client to Limit Malpractice Liability

- Client must be independently represented when signing such agreement
Settling Malpractice Claims
- advise in writing, to seek advice from independent lawyer about the settlement
and
- giving that person time to seek that advice

Even if the lawyer pays the client back for any damage he caused, he is still subject to discipline.

DUTY OF CONFIDENTIALITY
Rule: Lawyer must not reveal any information relating to the representation of the client.
Exceptions:
- Informed Consent "informed consent" means that the client agrees to a proposed
course of action after the lawyer has adequately explained the risks and reasonable
alternatives ,
- implied authorization to carry out representation, unless client says NO
- Attorneys Defense
o Reveal only necessary
o Attempt to limit disclosure
- Obtain ethics advice
- Court Order
- (May) Disclosure to Prevent Death or Substantial Bodily Harm
- Disclosure to Prevent or Mitigate Substantial Financial Harm
o (Future) reasonably certain to result in substantial financial harm to
someone, if the client is using or has used the lawyer's services in the matter.
o (Past) The same is true if the client has already acted, and the lawyer's
disclosure can prevent or mitigate the consequent financial harm

Encourages candor between the lawyer and the client,

Encourages the client to seek early legal advice, and helps the lawyer discover all of the
information relevant to the client's legal problem

Attorney-client privilege concerns only the disclosure of information. Discipline.

Duty of confidentiality concerns both the disclosure and use of information. Discipline and Malpractice.

ATTORNEY-CLIENT PRIVILEGE
Rule:
- prohibits a court or other governmental tribunal from compelling the revelation of
confidential communications
Exceptions to Privilege
- client seeks the attorney's services to engage in or assist a future crime or fraud
- communication that is relevant to an issue of breach (by either the attorney or the
client) of the duties arising out of the attorney-client relationship.
CONFLICTS OF INTEREST
RULE: Substantial risk that lawyer's representation of client will be materially and adversely affected by:
- the lawyer's own interests or
- the lawyer's duties to
o another current client,
o a former client, or
o a third person

If conflict is apparent in beginning, Attorney must not take the case.

If Conflict becomes apparent after taking the case, and informed consent from both clients will not
remedy, then Lawyers must withdraw.

A lawyer's failure to handle a conflict properly can have three unpleasant consequences:
(i) disqualification as counsel in a litigated matter,
(ii) Professional discipline, and
(iii) civil liability for legal malpractice.

Imputed Conflicts of Interest

when one of the lawyers cannot take on a matter because of a conflict of interest, the other
lawyers in the "firm" are also barred from taking on that matter.

Concurrent Conflicts of Interest

a lawyer must not represent a client if the representation creates a concurrent conflict of interest.
- Directly adverse to another client
- Significant risk of Materially limiting representation

Informed, Written Consent

Lawyer may represent a client if all four of the following conditions are satisfied:
(i) belief of competently and diligently represent each affected client, despite the conflict of
interest;
(ii) Not prohibited by law:
(iii) Not involve asserting a claim by one client against another client represented by that lawyer
in the same litigation (or other proceeding before a tribunal); and
(iv) each affected client gives informed, written consent.

Reasonable Lawyer Standard

If a reasonable lawyer reviewing the facts finds that the clients interests cannot be adequately
protected despite the conflict then conflict in unconsentable.

Informed
Client is aware of all of the relevant circumstances, reasonable alternatives, and foreseeable
ways the conflict might harm them.

Civil Litigations
Lawyer may represent two plaintiffs or two defendants if both give informed consent in writing.
- Analyze fact to ascertain the conflicts
o Find effective representation possible despite conflict
- Disclose potential conflicts to both
- Invite informed written consent
 If potential conflict become present re-do steps
-
Business Transactions with Client and Money or Property Interests Adverse to Client
A lawyer's professional training, together with the bond of trust and confidence between a lawyer and
client, create a risk that the lawyer can overreach the client in a business, property, or financial
transaction. Therefore, a lawyer must not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security, or money interest that is adverse to a client, unless all of the
following conditions are satisfied:
- fair to the client;
- terms are fully disclosed to the client in writing
o client can reasonably understand
o cover the essential terms
o lawyer's role in the transaction
- advised in writing that he should get the advice of an independent lawyer about the
arrangement before entering into it
- The client gives informed consent, in a writing that the client signs.

Propriety Interest in Litigation:

Lawyer must not acquire a proprietary interest in the cause of action or the subject matter of
litigation that the lawyer is conducting for the client.
Exception: Contingency Fees, Attorney Lien

CONFLICTS INVOLVING THE INTERESTS OF THIRD PERSONS

A lawyer must not accept compensation from a third person for representing a client, unless
three conditions are met:
(i) client gives informed, written consent;
(ii) third person does not interfere with the lawyer's independence or the representation
(iii) does not compromise the client's confidential information.