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Autonomy Of Lawyer Anti Contact Rule Layer’s Fees And Pro Bono Outline

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02. Autonomy of Lawyer, Anti-contact rule, Layer's Fees and Pro Bono
P.65-76, 83-101 111-127; 146-155
Autonomy of Attorneys and Clients P.65
 Clients hire lawyers when they require legal advice to pursue their autonomous choice
 A lawyer cedes some of her own autonomy when she agrees to represent a client
 The opposite lawyer told the lawyer that his daughter is in hospital. But if the opposite lawyer doesn't file his complaint/ seek extension within the next 3 days, the court must dismiss the claim. Can the lawyer remind the opposite lawyer or should he ask his client's permission first?
 1.3[3] lawyers can agree to extension of time
 Lawyer can notify the opposition that he does not agree to time extension, without telling him his mistake
 Or the lawyer can choose to take the default
 If working in a law firm, should talk to supervisor
Jones v Barnes
- Whether lawyer has constitutional duty to raise every non-frivolous issue requested by D in criminal appeal
- D asked lawyer to raise certain claims  lawyer agreed to raise some but rejected most of it.
- D argue he had 6th amendment (effective representation of counsel) right to have his lawyer to raise all nonfrivolous issue on appeal.
- Held: stronger points would be diluted with weaker arguments  need not raise every non-frivolous issue requested by D in criminal appeal
- Dissent: right to the assistance of counsel carries right to decide which non-frivolous issues should be raised on appeal against counsel's advice. Lawyers and client doesn't always have the same interest + forcing D to accept lawyer's decision would lead him to believe that the law conspires against him
How much autonomy does the lawyer have?
- Low autonomy: Client's choice should be respected unless they would require lawyers to violate their conscience, the law or their duties to the court
- High autonomy: layer should have ethical discretion to refuse to assist in the pursuit of legally permissible course of action and to choose how to represent the client
Client's autonomy - Olfe v Gordon
- Olfe hired Gordon (lawyer) to handle the sale of her home. Olfe instructed Gordon that she is only willing to take back a first mortgage, but Gordon negotiated a contract that provide for a second mortgage. Purchaser default and first mortgage was foreclosed, Olfe lost more than $25k  Olfe sued Gordon alleging negligence.
- Supreme court held: attorney may be liable for all losses caused by his failure to follow with reasonable promptness and care the explicit instructions of his client. An attorney's honest belief that the instructions were not in the best interest of his client is no defense for malpractice suit
- A lawyer must act in conformity with his authority and instructions + responsible to his principal if he violates this duty
- Rule 1.4(b) Even if Olfe had said nth about security, Gordon could not have elected to accept a second mortgage without informing Olfe. Gordon had a duty to give her the info she needed to make it
- Principal has a cause of action in tort against his agent lawyer when the lawyer violates a duty he owes to the principal. Expert testimony is not required to show that the agent has violated his duty
Scope of client's autonomy
- Whether to testify: when D asserts his desire to exercise his constitutional right to testify truthfully, counsel's duty is to inform D why he believes this course will be unwise or dangerous. If D interests, counsel must accede however irrational it might be.
- Right to accept plea offer despite his lawyer's objection
- Clients with diminished capacity (e.g. mental disability/ minor) Rule 1.14

(a): lawyer shall maintain a normal client-lawyer relationship

1 (b) when lawyer believes the client is at risk of substantial physical, financial or other harms unless action is taken + cannot adequately act in the client's own interest , the Lawyer may take reasonably necessary protective action

(c) client info protected by Rule 1.6, under (b), lawyer is impliedly authorised under 1.6, but only to the extent reasonably necessary to protect the client's interest
Re MR: guidelines for lawyer assisting an incompetent

Incompetency doesn't deprive a person of the right to make all decisions

Primary duty is to protect that person's rights (including rights to make decisions)
o Attorney should advocate any decision made by the incompetent client

On perceiving a conflict between that person's preferences and best interest, attorney may inform the court of the possible need for a guardian oRule 1.16 (b) [Declining or terminating representation] P.77
Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:…
- (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
Communicating with another lawyer's client [Anti-contact Rule]
Rule 4.2 [Communication with person represented by counsel] No Contact Rule
- In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.[Adversity is not required.]
Applies to litigation and criminal matters
Applies even if the represented person is not the direct opponent of a client
E.g. co-defendant in a litigation; another party on the same side of a transactionConditions of the no-contact rule

Communication must occur while a lawyer is representing a client on the matter which the contracted person is also presented

Comment [8] Knowledge may be inferred from the circumstances + a lawyer cannot evade the requirement by closing eyes to the obvious. But if the lawyer doesn't know that the contacted person is represented, the rule doesn't impose a duty to find out  nevertheless, it may make sense to enquire because a tribunal might later say the lawyer did know

Rule 4.3 imposes duties when lawyers communicate with unrepresented persons

4.2[4] only forbid communication about the subject of representation, the lawyer may communicate about anything else (e.g. politics and sports)
 4.2 [4] A lawyer may not make a communication prohibited by this Rule through the acts of another.
 Violation occurs if a lawyer engages in forbidden communication through a third party, eg.
Investigator/ client's own client Rule 8.4(a)
o If a represented person claims his lawyer consents/ he has fired his lawyer, best to get confirmation from that lawyer

Only communication is forbidden, videotaping employees of a represented company is allowed Hill v
Shell Oil  videotape behaviour of gas station attendants to gather evidence of racial discrimination in their treatment of customersClients are free to talk to each other  how far should a lawyer aid such communication?

2 Rule 4.2[4] Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.
o ABA opinion 11-461: lawyer may give substantial assistance to a client in such communication - the advice can include subject/topics to be address, issued to be raised and strategies to be used. Such advice may be given whether it is the lawyer or the client had conceives of the idea of having a communication. But should not assist the client in securing the represented person, an enforceable obligation, disclosure of confidential info/ admission, without opportunity to seek the advise of counsel.
The rule prevent lawyer from

getting a damaging admission from the represented person

obtaining privileged knowledge/ doc

learning the client's true position in negotiation, strategy,
o weakening the represented person's resolve, by casting doubt to the strength of his position and

driving a wedge between the represented person and his lawyer
Contravening interests:
o Informal and inexpensive access to info

Facilitating compliance with rules before filing complaints o-

Easy to know if an individual is a represented person, but more complicated for entities
- Who, within the entity is deemed to be a represented person in "Slip and Fall (Part II)" P.87
- In order to determine whether there is a case, can Parr (Tracy's lawyer) informally interview:
o Todd - investigator for Tracy  cannot interview
 R. 4.2[7][A] Tod is working for Parr (Tracy's lawyer), he knows a lot about Tracy's litigation strategy, too dangerous

Burkow - head of maintenance  cannot interview
 R. 4.2[7] [C] conduct may create Tracy's liability

Morse - floor waxer  cannot interview
 R. 4.2[7] [C] conduct may create Tracy's liability

Sandstrom - salesperson on break can interview
 witness, not under R. 4.2[7] [A,B,C], even if Parr interviewed them, it doesn't constitute regularly consulting

McCormick - buyer on his day off  can interview
 witness, not under R. 4.2[7] [A,B,C], even if Parr interviewed them, it doesn't constitute regularly consulting

Corcoran - Burkow's predecessor who established waxing protocol  cannot interview
 A former constituent, once been in [A, B, or C]  lawyer should ensure the interviewee is not elucidate info that would otherwise be privileged

Rivera - president of company that provides wax

Kuhl - customerRule 4.2 [7] adopted Niesig's control group test:
o In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who:
o [A] supervises, directs or regularly consults with the organization's lawyer concerning the matter or

[B]has authority to obligate the organization with respect to the matter or

[C] whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability…Niesig: Facts: P wish to have his counsel privately interview a corporate D's employees who witnessed the accident  issue whether they are represented parties

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