Counseling

What Is Counseling? Process of helping clients reach decisions

Components of Counseling 1.Identify Alternatives 2.Analyze Consequences 3. Client’s Decision

MR 2.1 In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Client Decisionmaking : - Educating and offering expertise to make alternatives and consequences better defined and understood in a generally neutral fashion while - Leaving the ultimate decision up to the client.

MR 1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

MR 1.2 (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

MR 1.16 (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (b) 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; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

CRC 3-700(C) A member...may not withdraw...unless such request or withdrawal is because (1) the client... (d) renders it unreasonably difficult for the member to carry out the employment effectively.

Identifying Alternatives Exercise A friend of yours, Bill, has recently purchased a digital video camera worth about $1,000. A friend of yours, Bill, has recently purchased a digital video camera worth about $1,000. Bill lent it to Julie (who you don’t know) to film Julie’s sister’s wedding. Bill lent it to Julie (who you don’t know) to film Julie’s sister’s wedding. Bill hasn’t really needed it back until now, but now he wants it back and it’s been several months. Bill hasn’t really needed it back until now, but now he wants it back and it’s been several months. He tells you it’s hard to get hold of Julie. When he does get hold of her, she promises to return it, but never does. He tells you it’s hard to get hold of Julie. When he does get hold of her, she promises to return it, but never does. Bill says he now gets mostly voice mail and no responses to his s. Bill says he now gets mostly voice mail and no responses to his s.

What Alternatives Do You Have To Get The Digital Video Camera Back?

1)Sue in equity to seek return of camera: (conversion; trespass to chattels; replevin; mandatory injunction (maybe seek writ of attachment)) 2)Sue in small claims court for $1000 (or replacement value + use – conversion; breach of contract; TTC) 3)Report to police (theft, larceny) 4)Self help (Bill goes and gets or hires someone -break into friend’s house -break knees) 5)Have attorney contact friend (oral/letter) - pressure 6)Have mutual friends/family pressure Julie 7)Forget it 8)Make insurance claim 9)Bill tries to talk to Julie again 10)Mediation/arbitration by outside organization

Basic Types of ADR Negotiation Mediation Arbitration Private Judging Mini Trials

Advantages of ADR Cheaper Cheaper More flexible, both in terms of scheduling and remedies More flexible, both in terms of scheduling and remedies Quicker Quicker Privacy Privacy Can select fact finder Can select fact finder Less burden on court system Less burden on court system

Basic Types of ADR Negotiation Mediation Arbitration Private Judging Mini Trials

Disadvantages to Arbitration Arbitrators charge as much as $5,000/day. There are still lawyer costs; expert costs; costs for preparing evidence, etc. Arbitrators charge as much as $5,000/day. There are still lawyer costs; expert costs; costs for preparing evidence, etc. Possibility of remedies “by the half.” Possibility of remedies “by the half.” Potential bias towards those who give the most work. Potential bias towards those who give the most work. No discovery usually. No discovery usually. No “summary judgment” or “motion to dismiss” No “summary judgment” or “motion to dismiss” Fewer evidentiary protections. Everything comes in. Fewer evidentiary protections. Everything comes in. No assurance arbitrator will follow the law. No assurance arbitrator will follow the law. Limited judicial review. Limited judicial review. Limited ability to join third parties. Limited ability to join third parties. May not know opponent’s evidence of strategy. May not know opponent’s evidence of strategy.

Are Decisions Binding? Private Judging Yes, as much as a court judgment Arbitration Judicial arbitration is not binding at all Private arbitrations can be relatively final, but need to “confirm” arbitration award and then have access to judicial enforcement mechanism. Very limited grounds to upset award – bribery, drinking, undisclosed conflicts, etc. NOT mistake of law. (Usually arbitrator is given deference as to scope)

Are Decisions Binding Negotiation/Mediation If agreement reached can be made binding: Contract Part of Court Order or file stipulated judgment

Predicting Legal Consequences in Richards v. Kaufman Suit For: $400 back rent Attorney Fees Eviction

Defense Claims Unihabitability Toilets stopped up Common area is filthy and garbage smells

Plaintiff’s Settlement Offer $300 No Eviction Each responsible for own attorney fees

What If Kaufman Loses At Trial Worst Possible Outcome 1)evicted 2)have to pay back rent (could be more than April/May by then) (say $600) 3)pay attorney fees (hers and landlord's) (say another $600) 4)may have to pay "future" rent (lease term) 5)lose deposits (if any) 6)pay for repairs to toilet 7)get on eviction list? 8)hassle/expense of finding a new place

What if Kaufman goes to trial and wins? Best Possible Outcome: 1)stay in apartment 2)gets repairs/ defects corrected 3)no payment of back rent 4)eviction protection for period of time (probably through end of lease) 5)her attorney fees get paid 6)maybe no future rent until repairs made

MR 1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

CR (A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.... (C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

WHY ME??? If it was easy, you’d be in business school.

Where do you get these predictions? Research, Interviewing, Investigation, Discovery Consultation with other lawyers and experts Consultation with court personnel

Tello v. Henson Suit- recover $3500 loan + plaintiff's attorney fees - Defendant says loan made but $ not due yet Settlement = $ complete release Prediction = 80-85% chance to win; 15-20% suit premature (and if so, plaintiff will owe defendant's attorney fees) Attorney fees = $500 + $300 if go to trial Plaintiff needs $1500 now- $500 work expenses (to repair lift)- $1000 for family vacation Wife was opposed to loan originally Friends feel that Plaintiff should leave Defendant alone