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

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 6^th amendment (effective representation of counsel) right to have his lawyer to raise all non-frivolous 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

  • (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)

  • 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

Rule 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 transaction

• Conditions 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...

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