1. John Steele, Attorney at Law www.johnsteelelaw.com

2. John Steele Attorney at Law www.johnsteelelaw.com john.steele@johnsteelelaw.com 650-320-7662 (USA) © John Steele 2010

3. 5/12/2015 3 Attorney Client Relationship Lifecycle

4. 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

5. The Lawyer’s Balance 5/12/2015 5 The ACR vs. Duties to society

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

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

8. 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

9. 5/12/2015 9 1 Duties before the ACR is created

10. Meeting with prospective client 5/12/2015 10

11. 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. 1984-84; LA Form. Op. 366 (1977); ABA Form. Op. 90-358

12. 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)

13. Meeting with prospective client 5/12/2015 13

14. 5/12/2015 14 2 Creation of the ACR

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

16. 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”

17. 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

18. 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)

19. 5/12/2015 19 3 Defining the ACR

20. Scope of the representation 5/12/2015 20 What’s in; What’s out? Who’s in; Who’s out?

21. 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

22. 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

23. 5/12/2015 23 4 Lawyers’ Duties to Clients during ACR

24. 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 1.7-1.12) (CRPC 3-300, 3-310)  Independent judgment (MR 2.1; CRPC 3-310)  Safeguarding property (MR 1.15; case law)

25. 5/12/2015 25 5 Lawyers’ Duties to Non-Clients during ACR

26. 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

27. 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)

28. 5/12/2015 28 7 Clients’ Duties to Lawyers during ACR

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

30. 5/12/2015 30 7 Termination of the ACR

31. 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

32. 5/12/2015 32 8 Duties Surviving Termination of ACR

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

34. 5/12/2015 34 www. john steele law.com