Attorney/Client Relationship

Forming, Maintaining, and

Ending the Relationship

Client-Lawyer Relationship

Traditional Model Lawyer in control

Participatory Model Shared control –

“just right”? “Hired Gun” Model

Client controlLawyer Client

Rule 1.2

Client decides objectives of representation. Attorney shall consult with client as to the means to

achieve those objectives (per 1.4) Representation of client does not constitute

endorsement of views or activities. May limit scope of representation

if reasonable and client gives informed consent.

Shall not help with criminal or fraudulent conduct – may discuss consequences and application of law.

Objectives decisions

Civil – Whether to settle or not.

Criminal – Plea to be entered Whether to waive jury trial Whether to testify All after consultation with lawyer.

Other objectives decisions – Above not exclusive Illegal activity is NOT a permissible objective.

Rule 1.4 Communication

Lawyer shall Inform client when informed consent required; Consult with client about means to achieve objectives; Keep client informed about status of matter; Promptly comply with reasonable requests for information; Consult about limitations on representation imposed by

rules or other law.

Lawyer shall explain the matter reasonably so that client can make informed decisions.

Rule 1.14 – Client with Diminished Capacity Minority, mental impairment or other reason –

Shall maintain normal relationship to extent reasonable If legal representative – they generally make decisions

May take reasonable protective action as necessary, including Consult with those who can take action to protect Seek appointment of guardian ad litem, conservator or

guardian. Client information is still confidential

Presence of necessary “helpers” generally okay. Revelations for protective action may be impliedly

authorized, Only reveal to extent reasonably necessary to protect.

Texas Health & Safety Code

Attorney may advise proposed patient of wisdom of agreeing to or resisting efforts to provide mental health services BUT Proposed patient shall make the decision to agree

or resist the efforts. Regardless of attorney’s personal opinion,

Attorney shall use all reasonable effort to advocate right to avoid services if that is the client’s choice.

How relationship is created

Does the “client” reasonably think he is a client? Has the “client” shared confidential information? Important question may be whether attorney owes a

duty, not whether “client” is a client. Privilege and confidentiality Conflicts Malpractice

No attorney-client relationship if attorney is clear that he does not want to represent the client. But some duties may still attach.

Interviewing and counseling

Client interviews – Setting the tone Clarifying the agreement –

fees & expenses, scope, obligations Early conflicts checks Listen!!! Creativity

Rule 2.1 Advisor Lawyer shall exercise independent professional judgment

and render candid advice. May refer to considerations other than law –

moral, economic, social and political.

Patriarca v. Center for Living & Working, Inc.

Patriarca was a registered nurse and supervisor of personal care attendant program at the Center. She was fired – sued the Center for wrongful termination. She had spoken with former employees about events.

Center filed motion for protective order to prevent her and attorney from contacting former employees.

Judge entered order barring attorney From contacting former employees on matters concerning former employment, unless counsel present or counsel or court gives permission.

No-Contact Rule (4.2)

In representing client Lawyer shall not communicate About the subject of the representation With a person He knows is represented by another lawyer Unless

He has consent of the other lawyer or The communication is authorized by law or court

order.

Purpose of rule

“Fair play” If client hired attorney to protect interests, other

attorney should not be allowed to undercut that relationship Making agreements or concessions Making admissions Revealing protected information

Simpler where single, flesh-and-blood client Which people are protected – which are the “client” – for

this purpose when the client is an organization?

Who is protected?

Patriarca Those who exercise

managerial responsibility in the matter

Those who have authority to make decisions about the litigation

Those who are alleged to have committed the wrongful acts at issue.

Comment 7 to 4.2 Those who supervise,

direct, or regularly consult with the lawyer

Those with authority to obligate the organization with respect to the matter

Those whose act or omission may be imputed to the organization.

Application in Patriarca

Did these employees fit within a protected category? Do they have managerial responsibility? Are they decision-makers? Are they accused of causing P’s wrongful termination?

Protective order vacated – attorney can contact these witnesses. D had sought order to prevent P and attorney from making

contacts – Why did order apply only to attorney?

What policy justifies allowing these contacts?

Contrast privilege rules

IMPORTANT: This is NOT Upjohn! If P’s attorney had interviewed these same people

(assuming they are/were current employees) and made notes, would the notes be protected?

Upjohn protected communications and work product – not underlying information.

4.2 protects client from overreaching by opponent. Not needed if employee cannot bind client. If just a witness, like any other witness. But how do you get the information from the “important”

people if you can’t talk to them?

No-Contact Rule

Contact can still be made with consent of attorney (is this likely?) or through formal discovery (or other) May be more difficult and expensive, but available.

The rule applies even though a lawsuit may not have been filed. Rule applies to a “person” not a “party.”

The rule only applies regarding the “matter.” Can communicate about unrelated matters. Can get advice from lawyer not otherwise representing

anyone in the matter.

No-Contact Rule The rule does not prohibit communications with

former employees They cannot fairly be said to be represented by the entity’s

attorney. Of course, if they have an attorney, that attorney must

consent (or allowed by law or court order). If the constituent of the organizational client has his

own attorney, that attorney’s consent is sufficient. Contact by client or 3P

Still a violation if the attorney asks the client or 3P to make the contact for him

Otherwise, not within rule.

In re Users System Services

Motion to disqualify Akin, Gump for violation of No-Contact Rule – Firm met with Frazier, who still had other counsel of record.

District Court denied motion. Court of Appeals conditionally

granted writ of mandamus – Firm should be disqualified.

Supreme Court conditionally granted writ of mandamus – No abuse of discretion by Trial Court. Disqualification not required.

Users System

Akin, Gump (Gulde) (P) USSI User Systems Landreth

Cannan (D) Frazier McKeown Shaffar News America

Publishing

call

expert

Users System

Case deals with disqualification. That is a different question from rule violation. Rules nonetheless have an impact on question.

Did Gulde know Frazier was represented? Knowledge can be inferred. Here, Frazier told her he was not represented. Should she have confirmed?

Contact was not initiated by attorney Gulde – Does that matter? Rule prohibits communication.

Disqualification not required.

Not based on rules violation – Rules don’t control. No rules violation.

No prejudice. Frazier had a right to reveal information – to “switch sides”

Concur – waived right to disqualify. Delayed too long –

Lack of diligence – equitable considerations Tactical???

Majority said some explanation for delay.

Dealing with Unrepresented Person (Rule 4.3) In contact on behalf of client Shall not state or imply that disinterested. If person misunderstands role, correct the

misunderstanding. Do not give advice

IF there is, or reasonably might be, a conflict, Except to advise person to get an attorney.

Applies to opponents, allies, (see comment), unrepresented constituents, etc. (see 1.13(f)). But different approach if interests adverse.

Prevents misunderstanding, unfair advantage of unrepresented person.

Moores v. Greenberg P Moores injured while working. Sued shipowners in federal district court.

Represented by Greenberg – 1/3 contingent fee. Lost case. Moores sued Greenberg for malpractice. J/P for $12,000 Both parties appeal. Greenberg says evidence

insufficient as a matter of law. Wrong! Evidence of 2 settlement offers –

$70,000/$90,000 Moores says would have accepted $90,000 offer –

Greenberg failed to convey offer.

Malpractice claim Duty

Attorney-client relationship Breach of Duty

Failure to convey offers – Why is that a breach of duty? What if offer patently unreasonable?

Causation Would client have accepted offer?

Wouldn’t he advise against it? Would that be good advice? Client says would have accepted.

Damages Where did the court get $12,000?

Damages calculation

$90,000 offer

- 30,000 attorney contingent fee

- 5,000 costs (client pays per K)

- 43,000 paid by insurer (subrogation lien)

$12,000 damages

Settlement offers MUST tell client of all offers.

Client could specify settlement authority – Don’t bother me with offers below $X

OR accept any offer above $X What prevents client from accepting bad offer?

Attorney may have apparent authority to accept on behalf of client. Bind client Malpractice if outside actual authority.

Decision to appeal belongs to client. Restatement Implicit in rules – “objective” – can end relationship

Jones v. Barnes Barnes was convicted of robbery and assault. Melinger was appointed to represent him on appeal.

Consulted Barnes about claims to raise on appeal – chose three (of seven he suggested).

Barnes submitted pro se briefs raising others. Mellinger filed pro se briefs – argued his 3 points.

Conviction affirmed. 2nd Circuit granted habeas

corpus petition – Said have right to have attorney

raise all non-frivolous issues on appeal. Supreme Court reversed.

Autonomy issues in Jones

Who decides whether to appeal? Who decides how to appeal? Who decides how to write the brief?

Does the defense attorney have a constitutional duty to raise every non-frivolous issue D wants raised on appeal? Constitutional issue, not ethics issue. Question of effective assistance of counsel. Clearly NO right to insist on attorney making

arguments can’t ethically make. What if there were no non-frivolous arguments?

Anders brief and related cases Anders v. California –

Appointed attorney must brief all arguable points Protects right to counsel Court/client has information

McCoy v. Court of Appeals of Wisconsin Wisconsin rule also constitutionally acceptable Brief must also include discussion of why points lack merit

Smith v. Robbins California rule also constitutionally acceptable Summarize factual and procedural history with citations to record

– no argument. What is the court concerned about in these cases? States are free to adopt any constitutionally acceptable rule.

Jones issue

Must attorney raise all non-frivolous issues? NO.

Right to counsel is protected by active attorney. Attorney makes decisions about how to write brief.

Did this attorney do a good job on brief? Yes. All authority approves limiting arguments.

Majority – attorney must be effective – not just mouthpiece. Dissent – client lives with result – his liberty is on the line.

Result creates mistrust. Why wasn’t attorney willing to raise client arguments?

Q: Can client decide not to appeal death sentence?

Martinez v. Court of Appeal of California

U.S. Supreme Court decided that defendant does not have right to represent self on appeal.

Has right to represent self at trial – Distinguish appeal: Not same historical basis – attorney is available, so does

not deprive D of right to appeal. 6th amendment does not require – protections refer to trial. Autonomy and mistrust arguments do not outweigh

efficiency and effectiveness arguments. Any attorney is better than no attorney at all.

Committee on Legal Ethics v. Hart

Hart pleaded guilty to filing fraudulent tax return on behalf of client.

Sentenced to 18 months in jail. Mandatory disbarment if

crime of moral turpitude or that reflects adversely on honesty, trustworthiness or fitness in other respects.

Hart requests evidentiary hearing on mitigation.

Is it granted?

Criminal and civil statutes apply to lawyers too.

Client’s activities may create greater risk. Criminal exposure Civil liability to third parties

A “pure heart” is generally no defense. Risky to ignore clear signs of wrongdoing. “Willful blindness” may be the same as

knowledge.

The Florida Bar v. Bailey

F. Lee Bailey disbarred by Florida bar. Commingling Misappropriation of funds

Was he entitled to take his fee out of the funds? Approval required After approved, must take fee from account.

Was any money actually lost? Is that the issue?

Why so hard on Bailey? Famous attorney.

Commingling

Disbarment common Serious violation Easy to prove

Puts client’s money at risk Could be serious loss Actual loss not required Subject to claims of creditors Temptation

Rule 1.15 Safekeeping Property Deals with property of client – not just money

Property – identify and safeguard Also deals with property of third parties

Money – keep in separate account – trust account NOT operating account – good records won’t save it. Keep records for 5 years. Deposit own funds ONLY for paying bank service charges

Deposit settlement payments, fee deposits, expense payments – withdraw ONLY when earned or incurred.

When receive funds – notify client/3P. Promptly deliver/Prompt accounting when requested. If dispute, keep disputed portion separate – distribute rest.

Not for attorney to resolve dispute. Don’t hold any part client/3P has clear right to receive.

IOLTA

Interest on Lawyer Trust Accounts Aggregate trust account –

interest for legal services for poor Texas: Equal Access to Justice Foundation

Enforceability Not taxable to client Constitutional taking?

No. Client property (Phillips),

but no unconstitutional taking (Brown).

Client money If makes economic sense, put in separate account

Earn interest for client Obligations as fiduciary IOLTA does not change fiduciary obligations.

History of IOLTA Used to be optional – Ethical concerns Now mandatory – annual compliance statement.

Includes nominal amounts & $ held for a short time. Not required if don’t hold such funds in an amount that could

generate interest. Make effort. Still must keep separate. If can earn interest for client, must keep in client account Good faith decisions protected.

Hanlin v. Mitchelson P Hanlin sued Mitchelson for malpractice

Said attorney mishandled arbitration matter. District Court:

Denied leave to amend and dismissed complaint.

2nd Circuit reversed. Reason for reversal:

Not too late – didn’t know of need to confirm or of 1 year S/L – couldn’t really know if attorney didn’t tell her.

Attorney on notice of her claims – not prejudiced. Attorney/client relationship not clearly ended.

Need clarity. Fact Q. What if had been clearly over? Would she necessarily lose?

1.16 Mandatory Withdrawal (and declining employment)

Must withdraw, or refuse employment, if Will result in violation of Rules or other law Physical or mental condition materially impairs ability

to represent the client The lawyer is discharged.

Still must protect client’s interest NOTE:

Need court’s permission to withdraw in litigation even if mandatory.

& NOTE: Withdrawal is a noun – withdraw is a verb!

Fidelity Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co.

Cherry firm representing Ds in lawsuit. Agreed to pay hourly fee + expenses. Client behind by $470,000.

Cherry filed motion to withdraw. Denied. Said could not withdraw until

Ds get a new attorney.

Cherry appeals. Abuse of discretion standard.

Result?

7th Circuit reversed. Should allow firm to withdraw.

Is this a mandatory withdrawal case? Why does the court discuss the Rules? Reasons motion should be granted:

Client is not paying attorney Client is not going to get another lawyer – has a

lawyer now without paying. Non-payment creates an unreasonable financial

burden on the attorneys Already “out” almost .5 million – will incur another .5

million in fees to complete. 4 person firm.

Permissive withdrawal Attorney MAY withdraw if (1) Can withdraw without adverse effect on client interests; (2) Client using lawyer’s services in way lawyer believes is

criminal or fraudulent; (3) Client has used lawyer’s services for crime or fraud; (4) Client insists on action that is repugnant to lawyer OR

with which lawyer has fundamental disagreement; (5) Client fails substantially to fulfill obligation AND

has been given reasonable warning; (6) Representation will result in unreasonable financial burden

OR has been rendered unreasonably difficult by the client;

(7) Other good cause for withdrawal.

Court discretion Must court allow withdrawal if within one of these rules? Rules clear – must continue even if good cause to

withdraw (or if mandatory) if required by the tribunal. Court might deny for

Strategic Behavior Waiting until client “over a barrel” then threaten to withdraw to

get money – Not here. Failure to warn

Not giving client time to protect interests – Here, warned. Severe prejudice to 3Ps – None indicated here.

The court still controls the proceeding.

Duties after withdrawal Protect client’s interests Return client property, papers, unearned money. Return file to client – file belongs to client.

Rules say can retain to extent allowed by law: Retaining lien (lien on file until fee paid) Charging lien (lien on recovery)

Restatement does not allow retention of file unless only retaining work not paid for, and no harm to client.

Texas Rule 1.15: retain only if permitted by law and retention will not prejudice client.

Generally not a good idea to keep – risky. Continuing duties: Confidentiality, Loyalty

Jacobson v. Knepper & Moga

P Jacobson – associate attorney in Knepper & Moga Discovers firm violating provisions

of Fair Debt Collection Practices and Illinois Act.

Complains to Knepper 3 times. Fired. Sued for wrongful

retaliatory discharge. Does C/A apply to attorneys?

Jacobson analysis:

Limited exception to employment at will: Fired in retaliation In contravention of clearly mandated public policy

General setting for exception: Filed Worker’s Comp claim Fired for reporting illegal or improper conduct –

“whistle blowing” Is Jacobson successful with his claim?

Retaliatory Discharge Should employees generally have C/A?

Competing public policies Should employed attorneys have C/A?

What public policies are involved for attorneys? Same policies Additional policies – pro and con

What about confidentiality? Recall Willy

What type of employment is covered? Law firm Corporation (in-house) Private attorney

Additional considerations

Employed attorneys may have statutory claim May be different for partners – depends on claim

Bohatch v. Butler Binion (Texas 1998) Partner was expelled from firm Sued for breach of fiduciary duty and of

partnership agreement. Supreme Court said could be expelled for good

faith accusation of overbilling No tort damages – no breach of fiduciary duty

Did have claim based on partnership agreement.

Eisenstein v. Conlin

Eisenstein and Resnick attorneys in Dike, Bronstein, Roberts & Cushman.

K with firm that if w/draw, will pay % of billings to firm clients to firm.

Q: Is this agreement enforceable?

Does the agreement violate Rule 5.6?

Rule 5.6

A lawyer shall not participate in offering or making:(a) an agreement restricting the right to practice

after termination of the relationship, except agreement for retirement benefits; or

(b) an agreement restricting the lawyer’s right to practice as part of settlement of client’s case.

What is the purpose of this rule?

Prince, Yeates & Geldzahler v. Young

Young was hired as an associate with PYG. Represented clients without

telling firm or sharing fee. Dispute regarding

sharing of fee RE others. PYG sued Young for breach of fiduciary duty.

Young counterclaimed for breach of K. Does Young have a fiduciary duty to the firm?

Does it matter that he is just an employee?