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Chapter 5 Relationships Between Lawyers and Clients A. Formation of the “lawyer-client” (or is it “client-lawyer”?) relationship.

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Presentation on theme: "Chapter 5 Relationships Between Lawyers and Clients A. Formation of the “lawyer-client” (or is it “client-lawyer”?) relationship."— Presentation transcript:

1 Chapter 5 Relationships Between Lawyers and Clients A. Formation of the “lawyer-client” (or is it “client-lawyer”?) relationship

2 A. Formation 1.Choosing clients -U.K. “cab rank” rule. -U.S. rejects. Free to decline for any/no reason. 1.2(b) representation not endorsement of the client’s political, economic, social or moral views or activities.

3 A. Formation 1.Choosing clients -L preferences? -only mothers or only fathers? Color of hair, eyes, demeanor -S/ no expertise; advise C of other options? (pro se, DIY, someone else is better?) -Possible consequences if get in over one’s head?

4 Choosing C’s pp S/ NO prior experience in field; Tell C, bill for self-study? RPC 1.1 Cmts. 1-2 Atty. Grievance Comm. Of Md. v. Manger (Md. 2006) n. 2 p. 282 (securities L undertook divorce & custody, $25K bill! indefinite suspension) S/ New L, hung out shingle. – When is self-education feasible?

5 2. Offering advice as basis for C/L relationship pp “undertake” agree or failure to decline effectively Rstmt. §14(1), supp. p. 257 Broad concept “putative Cs” or “accidental C’s” Agency law: C is principal, L is agent Togstad: informational burden on agent as more sophisticated party to relationship

6 Togstad vs. Veseley (MN ’80) pp Case w/in case: Underlying medical malpractice by Dr. Blake; 1 hour delay in treating. Medmal π expert: Negligence of Blake & hospital direct cause of injury. Proced’l : Appeal from entry of jury verdict for plaintiffs, LM $650K Issue: did L Miller owe DUTY to Togstads? Contrast π testimony to Δ L/Miller pp

7 Breach? EW required where LM negligence claim. Also a K claim? Battle of Experts pp π Green? 2. Δ-1 McNulty? 3. ***Δ-2 Hvass?

8 Held, evidence sufficient to sustain $650K verdict. pp Duty: Mrs. T went for legal advice, reasonably believed it was given, not qualified by stating he lacked expertise and she reasonably relied upon, injury foreseeable. Mr. T also a C. 2. Breach: under circumstances (time since injury) duty to inform of applicable limitations period. 3. Actual & proximate cause: Miller was wrong, πs proved that would have recovered from Dr. & Hosp. if suit timely filed. (case w/in case) 4. Damages proven w/ sufficient certainty, recoverable from medical providers. (see damage allocation p. 290) 5. Rejected judgmental immunity defense (mere error of judgment)

9 Takeaway: when free initial consult What is minimum a lawyer should do under these circumstances? *** N. 6, pp Ethics 20/20 revised 1.18 Duties to Prospective Client (a) A person who discusses consults with a lawyer about the possibility of forming a C-L relationship with respect to a matter is a prospective C. Draft “letter of non-engagement”

10 Jones v. Barnes (1983) pp I: 6 th Amend. Can Δ insist that appointed indigent defense L raise on appeal every non- frivolous issue he wants? Held, no ineffective assistance; in criminal appeal L has authority to exercise professional judgment on best legal arguments; and filed C’s pro se briefs, complied w/ Anders. N.B. Re Constitutional standard, NOT ethical. Indigent C’s often mistrust their L’s.

11 D. Who calls the shots 1. Competent adult C : 1.2(a) C: objectives of representation, after required consultation w/ L so C can make informed consent (IC) per 1.0(e), 1.4 supp. pp L: means by which objectives to be pursued List, 2d sent. RPC 1.2(a) Distinctions between 1) transactional; 2) civil litig.; criminal defense. “Collaborative joint venture model”


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