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. Topics 1. Rule 1.2 2. Abide 3. Consult 4. Limitations on representation

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. Duties during ACR  Authority (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)  Loyalty (MR 1.7-1.12) (CRPC 3-300, 3-310)  Independent judgment (MR 2.1; CRPC 3-310)  Confidentiality (MR 1.6) ( Cal B&P Code § 6068(e); CRPC 3-100)  Safeguarding property (MR 1.15; case law)

6. 11/1/2015 6 1 Rule 1.2

7. 1.2(a): Abide & Consult 11/1/2015 7

8. 1.2(b): “Not an endorsement” 11/1/2015 8  “Not an endorsement of the client’s political, social or moral views or activities”  Says who?  Is choosing your clients a moral choice?  Is this a rule ?

9. 1.2(c): Limitations on scope 11/1/2015 9  Reasonable limitation  Client gives informed consent

10. 1.2(d): Crimes and frauds 11/1/2015 10  Counsel or assist  Crime or fraud  May discuss consequences, may in good faith help determine validity, scope, meaning, or application of the law

11. Forbidden Representations  Cannot counsel or assist client regarding criminal or fraudulent conduct (MR 1.2(d))  But CAN counsel about legal consequence and about validity, scope, meaning, or application of law (MR 1.2(d))  Cannot pursue litigation position w/o probable cause, or for harassment, or to maliciously injure (CRPC 3-200)  Cannot advise violation of law unless good faith belief in its invalidity (CRPC 3-210)  Cannot enter/continue ACR in violation of ethics rules

12. Let me repeat that... Lawyers may not...  Counsel, commit or assist crimes!  Counsel, commit or assist frauds!  Violate the ethics rules!

13. 11/1/2015 13 2 Abide (as to objectives)

14. Three Issues 1. Competent client? 2. Lawful objective? 3. What’s an objective? 1. The goal 2. Settlement

15. 11/1/2015 15 3 Consult (as to tactics)

16. Four Issues 1. What’s a tactic? 2. What is consulting? 3. What happens when the client and you disagree? 4. (Can the client later repudiate your tactics?)

17. 11/1/2015 17 4 Limitations on Scope of Representation

18. Scope of the representation 11/1/2015 18 What’s in; What’s out

19. 1.2(c): Limitations on scope 11/1/2015 19  Reasonable limitation  Client gives informed consent

20. Examples 1. Unbundled (e.g., family law) 2. Corporate GCs and big firms 3. Disaggregated law

21. 11/1/2015 21 Quiz!

22. Self-Diagnostic Questions  Paraphrase the rule concerning the duties to “abide & consult”  How does “abide & consult” happen with organizational clients?  Give an example of an objective and of a tactic.

23. Self-diagnostic Questions  What decisions belong to the criminal defendant?  Does the criminal defendant have the right to decide to commit perjury?  What two conditions must be met before the lawyer can limit the scope of the representation?

24. Self-Diagnostic Questions  Give an example of limited scope representation.  There is a distinction regarding lawyering and crime/fraud in MR 1.2(d). What is on either side of that line?

25. 11/1/2015 25 www. john steele law.com