Client Lawyer Relationship

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.

Forming A-C relationship p219

Anonymous

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.

Initiating the relationship: client interviews

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.

Non-client and the non-contact rule

Patriarca

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...

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