 Primary roles of lawyer vis-à-vis client  Adviser  Advocate (rep. to court)  Agent (rep. to others)  Sources of law governing agency function  General law of agency (mostly common law) with specific application to legal services (Silver Street, p. 139)  Ethics rules: MRPC 1.2 (duties to the client!)

Problem pp  On what theory might Carl be bound by the settlement agreement?  actual authority to sign on his behalf?  express authority?  Do you have enough information to answer that?  Who has the burden of proof?  implied authority?  what facts would Maude rely on?  How does Silver Street answer it?  How does MRPC 1.2(a) bear on it?

Enforcing settlement c’t’d  Did you have apparent authority?  how does this differ from “actual”?  Silver Street and n. 2 p – any basis for finding such authority in our problem?  n. 4 p. 143: is the Missouri case consistent with the general concept of “apparent authority”?  n. 5 p. 143: If Maude shows apparent authority and wins judgment against Carl, does that foreclose a malpractice action by him against you?

Enforcing settlement c’t’d  Possible solutions for you?  Pu t a clause in retainer agreement expressly authorizing you to enter into any settlement of the claim which is “reasonable and fair to client.” Permissible? Under what conditions?  Insert a clause whereby client agrees not to settle the claim without your consent?  safety first: get clients’ signatures on any agreement before relying on it?

Authority c’t’d  When Carl insists that you  depose Maude rather than using interrogatories  seek a change of venue  subpoena Maude’s tax records  what are your obligations? MRPC 1.2(a)  suppose Carl doesn’t “grudgingly acquiesce”? What do you do?

D. THE TRUST ACCOUNT  ABA Canons of Prof. Ethics, Canon 11 (Supp. p. 490)  don’t take advantage of client’s confidence for personal benefit  report and account for any money or “trust property” coming into your hands  don’t “commingle” client’s funds with your own  Wilson, p. 145; ABA Standards for sanctions, p. 146: knowing conversion = disbarment!  ABA Model Code DR 9-102, MRPC 1.15: “client trust account” requirement for funds  do you need a separate account for each client?

Problem pp  Check to you from client for $1,500: what do you do with it?  What is it for?  To whom do the funds belong?  Next day obtain doctor’s reports (cost $550) and hospital records ($250): how do you pay for them?  write checks on the trust account?  write checks on your personal account, then write a TA check to yourself as reimbursement?

Problem p c’t’d  File suit for client against neighbor, settled, you receive check for $150K made out to client and you – what do you do?  To whom do the funds belong? (contingent fee!)  can you just deposit it in the TA?  endorse it and give it to client for his endorsement? What risk?  Deposit it, then write TA checks to self and client for respective shares?  What risk?  If settlement check bounces, but there are sufficient other funds in TA, any problem?

Problem p c’t’d  Sandra is executor of uncle’s estate, receives his collections of baseball cards and coins, gives them to you for safekeeping – what do you do with them? (Grubb, p. 157; MRPC 1.15(a))  You ask for $500 check for fees and expenses; when you get it, you have already earned $300 in fees and expended $250 – what do you do with the check?

Problem pp c’t’d  Interest-bearing Trust Account (ITA)– what happens to the interest?  if it is a separate account for a single client? When would you be required to do this?  if it is a multi-client account?  Brown, p. 150 – State IOLTA plan requiring interest to be paid into a bar-controlled fund for legal services purposes  Is there a taking as defined in fed. Const.?  If so, is any compensation required?