John Steele, Attorney at Law

John Steele Attorney at Law (USA) © John Steele 2010

5/12/ Attorney Client Relationship Lifecycle

A/C Relationship Lifecycle 1. Duties prior to A/C relationship 2. Creation of A/C relationship 3. Defining the ACR Identity of client Scope of engagement 4. Lawyers’ duties to clients during ACR 5. Lawyers’ duties to non-clients during ACR 6. Clients’ duties to lawyers during ACR 7. Termination of ACR 8. Duties surviving ACR

The Lawyer’s Balance 5/12/ The ACR vs. Duties to society

ClientAttorney Decision-making Loyalty, Confidentiality, Independent Judgment, Communication, Safe- guarding property Fees

Attorney Society Public Citizen Officer of the Legal System Neutral (e.g., Judge) Representative of Clients

Client Attorney Representative of client Courts Exec. Branch Legislature Public Markets Private Markets Private Life Adversaries Non-adversary Third Parties Attorney- Client Relationship ACR Roles: Litigator; Advisor; Negotiator; Evaluator Fiduciary Duties Fees Decisions

5/12/ Duties before the ACR is created

Meeting with prospective client 5/12/

Duties Prior to A/C Relationship  Law requiring confidentiality for confidences of prospective client:  Restatement §15(1)(a)  Model Rule 1.18  No CRPC or State Bar provision on point  COPRAC Form. Op ; LA Form. Op. 366 (1977); ABA Form. Op

Duties Prior to A/C Relationship  Adversity to prospective client?  D/Confidentiality, not D/Loyalty:  If Atty received material confidences, or matters are the same or “substantially related,” then:  Absent consent, the attorney is barred from the representation;  Absent proper screen, conflict imputed w/in firm  MR 1.18(d); Restatement §15(b)

Meeting with prospective client 5/12/

5/12/ Creation of the ACR

Creation of A/C Relationship  Moment of extreme importance:  Classic stumbling block  Triggers most duties  On/off light bulb, not dimmer switch

Creation of A/C Relationship (Law)  No CRPC or Model Rule on point?!!  Restatement §14  Case law: client’s “reasonable expectations”  Contract approach (express or implied)  Note: K to pay fees & payment of fees not req’d to form A/C Relationship  Tort approach  Both view “reasonable reliance”

Creation of A/C Relationship (Law)  California appears to use a contractual analysis. Vapnek, et al. ¶ 3:30  Express contract (oral or written)  Writing sometimes req’d by State Bar Act  Contents regulated by State Bar Act  Implied contract  Reasonable expectations: confidences, advice, parties’ understandings

Creation of A/C Relationship: Fee Agreements  Model Rules approach  Written fee agreements not required  California approach  Written fee agreements often required (Cal. Bus. & Prof. Code §§ 6146, et seq.)  NOT required for corporation clients, if representation is similar to previous one, or if expected fees less than $1,000 (Cal. Bus. & Prof. Code § 6148)

5/12/ Defining the ACR

Scope of the representation 5/12/ What’s in; What’s out? Who’s in; Who’s out?

Creation of A/C Relationship: Scope of the Engagement  Another stumbling block  Mere example: “what’s in”  Definition: “what’s in” & “what’s out”  Unsophisticated clients may not understand limited role  Closely tied to “objectives” of representation (MR 1.2) discussed below  Limitations on the representation  Must obtain client consent  Prudent to put limitations in writing

Creation of A/C Relationship: Client Identity  Another perennial stumbling block  Natural persons  Disabled clients  Minors  Beneficiaries  Organizational clients  Corporations, partnerships, associations, consortia, classes, etc.  Clients who are fiduciaries

5/12/ Lawyers’ Duties to Clients during ACR

Duties lawyer to client during ACR  Abide & Consult (MR 1.2) (CRPC 3-200)  Competence (MR 1.1) (CRPC 3-110)  Diligence (Zeal) (MR 1.3) (CRPC 3-110(B)(1))  Communication (MR 1.4) (CRPC 3-500, 3-510)  Confidentiality (MR 1.6) ( Cal B&P Code § 6068(e); CRPC 3-100)  Loyalty (MR ) (CRPC 3-300, 3-310)  Independent judgment (MR 2.1; CRPC 3-310)  Safeguarding property (MR 1.15; case law)

5/12/ Lawyers’ Duties to Non-Clients during ACR

Client Attorney Representative of client Courts Exec. Branch Legislature Public Markets Private Markets Private Life Adversaries Non-adversary Third Parties Attorney- Client Relationship ACR Roles: Litigator; Advisor; Negotiator; Evaluator Fiduciary Duties Fees Decisions

Duties lawyer to non-clients  Third persons (4.x)  All third persons (4.1)  Represented persons (4.2)  Unrepresented persons (4.3)  Role-based duties to non-clients  Litigators (3.x)  Basic rules; prosecutors (3.8); criminal defense  Negotiators (4.1)  Counselors (2.1)  Evaluators (2.3)

5/12/ Clients’ Duties to Lawyers during ACR

Client Duties to Lawyers  Contractual, not fiduciary  Fees (often)  Other duties included in the fee agreement  E.g., keep lawyer contact info  E.g., liens and possessory interests (1.8(a)); 3-300)

5/12/ Termination of the ACR

Ending the ACR  Permissive Withdrawal (1.16; 3-700)  Mandatory Withdrawal (1.16; 3-700)  Duties pertaining to termination  Duties surviving termination of ACR  Confidentiality  Loyalty

5/12/ Duties Surviving Termination of ACR

Duties Surviving the ACR  Duties surviving termination of ACR  Confidentiality  Loyalty

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