Where lawyer is impliedly authorized to act.

Examples: Entertaining into stipulations regarding matters beyond reasonable dispute, citing certain authority in a brief, conducting cross-examination without constantly seeking client’s approval for each question

Lawyer shall abide by client’s decision, after consultation with the lawyer, as to:

1. a plea to be entered

2. whether to waive jury trial and

3. whether the client will testify.

i. Clients normally defer to lawyer for: the special knowledge and skill of their lawyer; technical, legal, and tactical matters

ii. Lawyers defer to client: regarding questions of expenses to be incurred and concern for third parties which may be affected

iii. Doesn’t say how to resolve issues, should try to consult with client to find a favorable outcome but if lawyer or client has a fundamental disagreement, they can withdraw from the case.

Anders: A lawyer who disagrees with his client about proper grounds of appeal may submit a brief that includes arguments raised by the client that the lawyer does not deem meritorious. – Must indicate that they are raised under Anders.

Jones: Gives lawyers authority to omit certain grounds for appeal urged by client if the lawyer believes these grounds would weaken brief.

A lawyer may limit scope of rep. if:

1. limitation is reasonable and

2. client gives informed consent.

Examples: when client has limited objectives for representation, may exclude specific means otherwise may be used to obtain objectives if client thinks means are too costly or lawyer regards them as imprudent.

1. Lawyer shall not counsel client to engage, or assist client, in conduct  lawyer knows is criminal or fraudulent

2. but  may discuss legal consequences of any proposed course of conduct with client and may counsel client to make good faith effort to determine validity, scope, meaning, or application of the law.

Communicate with client about:

1. Get informed consent as required by Rules

2. Means to be employed in pursuing objectives

3. Status of matter - keep reasonably informed

4. Reasonable requests for information - answer

5. Relevant limitation on lawyer’s conduct when  client expects assistance banned by Rules.

1. Keep client apprised of important events and must check in when representation reaches significant junctures

2. Lawyer must explain matter to extent reasonably necessary to permit client to make informed decisions regarding representation.

Must address in writing:

a. how fee is determined (flat fee or % of damages)

b. How court costs and litigation expenses will be paid

c. Expenses for which client will be liable whether or not they win

Must be communicated to client (writing is preferable) before or w/in a reasonable period after representation commences, but not necessary if attorney has represented in the past if charging at same rate as before

a. Extent of the work involved (including considerations of time, labor, novelty, difficulty, etc)

b. Adverse effect on lawyer’s other work (likelihood, if apparent to the client, that lawyer’s acceptance of particular employment will preclude other employment opportunities)

c. Fee customarily charged in that locality

d. Dollar amount involved in matter and result obtained

e. Time limitations imposed by client or other circumstances

f. Nature and length of lawyer’s professional relationship with client

g. Stature of lawyer

h. Whether fee is fixed or contingent (contingent fees given more leeway because lawyer is assuming risk that she will receive no fee if unsuccessful)

1. Contingent fees in cases involving domestic relations

2. Contingent fees in criminal cases

3. Compensation for referrals

1. Lawyers in the same firm: may split fees however they want.

2. Lawyers in different firms can split fees only if three conditions are met

a. Split proportional to services provided by each lawyer (or client consents in writing to a non-proportional split and lawyers assume joint responsibility for representation)

b. Client advised and consents to participation of all lawyers involved

c. Total fee is reasonable

a. Lawyer dies and payments made to lawyer’s estate or other specified persons for reasonable time 

b. Purchase of practice of deceased or disabled lawyer - may make reasonable payments to estate or other representative of dead lawyer

c. Can include non-lawyer employees in compensation or retirement plan, even if plan is based in whole or in part on profit-sharing agreement

No accepting payment for representing client from a third-party, unless:

a. Client gives informed consent

b. Payment of compensation must not interfere with lawyer’s independence or compromise lawyer-client relationship

 c. Lawyer must maintain confidentiality under Rule 1.6.

No acquiring a proprietary interest in cause of action or subject matter of litigation lawyer is conducting for client, unless:

a. Acquiring a lien granted by law to secure fee or expenses

b. Contracting with client for reasonable contingent fee in civil case.

A. Are three elements of attorney-client privilege present?

B. If yes, do any of five exceptions to the privilege apply?

C. Are two elements that give rise to ethical duty of confidentiality present?

D. If yes, do any of the eight exceptions to

duty of confidentiality apply?

The government may not compel disclosure of communication:

1. between client and attorney (or the attorney’s staff) if communication

2. was made in confidence

3. for purpose of obtaining or providing legal services to the client.

(3Ps: Parties, place, purpose)

Elements of Attorney-Client Privilege

(Three P's)

1. Is gov. seeking to compel disclosure of communication between lawyer and client? (Examples: Questioning of witnesses subpoenaed to court by any party, Questioning of witnesses subpoenaed to a deposition by any party, Discovery requests such as requests for admissions)

2. Was the communication made in confidence?

3. Was communication made for purpose of obtaining or rendering legal services?

a. Lack of confidentiality at time of communication

b. Communication for purposes other than obtaining or rendering legal serviced

c. Waiver of privilege by voluntary disclosures

d. Communication in furtherance of crime or fraud

e. Attorney’s services at issue

f. Reporting of child abuse

If others besides client, attorney, and attorney’s staff were present at communication – presumed it was not intended to be confidential

Eavesdropping: confidentiality preserved if eavesdropping not apparent to client or attorney

i. Does not apply to topic irrelevant to matter for which attorney is engaged by client

ii. Construed liberally in client’s favor to preserve confidentiality

1 Client’s disclosure to a third-party about subject matter of communications, after communication has taken place

2. Attorney’s disclosure to third-party:

a. If with client’s express or implied disclosure, court may find waiver

b. If unilateral disclosure, court may be reluctant to find privilege waived because client did not consent ito disclosure

i. Some courts still may find it waived because lawyer is agent of C

a. Client must intend to commit crime or fraud (client’s intent that matters, not the attorney’s)

b. Client must be communicating with attorney for purpose of furthering crime or fraud

Other:

1. Generally, limited to ongoing or future crimes not past crimes and frauds

2. Party seeking to pierce bears burden

i. When client brings complaint or claim against attorney or puts attorney’s services at issue, attorney may bring evidence of communication with client

ii. Can also do this when a 3rd party bring claim, but court will probably impose protective order or use other means to preserve secrecy 

A lawyer shall not reveal info relating to representation of client unless:

1. client gives informed consent

2. disclosure is impliedly authorized in order to carry out representation,

3. or disclosure is permitted in 1.6(b).

a. Has lawyer acquired info in course of representing the client?

b. Does info relate to representation of client?

1. Client gives informed consent for disclosure

2. Implied authorization” for disclosure

3. Where disclosure necessary to prevent reasonably certain death or substantial bodily harm.

4. Preventing fraud or crime

5. Mitigating effect of fraud or crime

6. Obtaining legal advice about ethical duties

7. Lawyer’s services at issue

8. Disclosure required by court or by law

9. Whistleblowing in connection with organizational representation

10. Avoiding presentation of false evidence to tribunal

Harm is reasonably certain to occur if:

1. suffered imminently or

2. if there is present and substantial threat that a person will suffer such harm at a later date

3. if lawyer fails to take action necessary

Doesn't have to be criminal act

Conduct must be: 

1. reasonably certain to cause

2. substantial injury to financial interests or property of another and

3.  client has used or is using lawyer’s services

ii. Attorney’s services must be implicated 

iii. Disclosure not required of lawyer

Disclosure allowed to

1. prevent, mitigate, or rectify

2. substantial injury to financial interests or property of another

3. that is reasonably certain to result or has resulted from client’s commission of crime or fraud 4. for which client has used lawyer’s services

If revealing info will mitigate situation, lawyer can reveal it to  extent necessary to enable affected persons to mitigate losses.

A. Prosecutors must maintain secrecy of info obtained in grand jury investigations. Court order required to authorize disclosure.

B. If they disclose, face severe criminal penalties.