TOPIC G: CLIENTS’ RIGHTS 2016 P.R. Prof. Janicke

TOPIC G: CLIENTS’ RIGHTS

2016 P.R.Prof. Janicke

MAIN RIGHTS

• CORROLARY OF LAWYER’S DUTIES

• THE #1 TOPIC ON MPRE

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THE EASY ONES(TO UNDERSTAND)

• COMPETENCE TO DEAL WITH THE PARTICULAR MATTER AT HAND R. 1.1

• THE SKILL CAN BE EITHER EXISTING OR TO-BE-ACQUIRED SHORTLY C4

• [DILEMMA: DEDUCING WHAT SKILLS YOU WILL NEED]

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CAN YOU ENGAGE AN OUTSIDE-THE-FIRM

HELPER-LAWYER?• YES. R. 1.1 C6

• BUT CLIENT’S “INFORMED CONSENT” IS NEEDED C6

– DEFINITION: LAWYER MUST EXPLAIN THE RISKS AND ALTERNATIVES R. 1.0(e)

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THIS PARTICULAR INFORMED CONSENT MUST DEAL WITH:

• ALLOCATION OF AUTHORITY R. 1.1 C7

• FEE-SHARING R. 1.5(e)

• ETC.

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DILIGENCE R. 1.3

• THE #1 OR #2 CAUSE OF GRIEVANCES, BAR SANCTIONS, and MALPRACTICE CLAIMS

• THESE ARE EASY QUESTIONS TO DEAL WITH ON MPRE

– NOT SO EASY IN PRACTICE – PROCRASTINATION RULES

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INDEPENDENCE OF JUDGMENT

• IS ESSENTIAL TO THE RELATIONSHIP

• ESP. WHERE 3RD PARTY IS TO PAY THE FEES

– CLIENT MUST APPROVE R. 1.8(f)

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FREEDOM FROM CONFLICTS

• WITH OTHER CLIENTS’ INTERESTS TOPICS I and J

• WITH THE LAWYER’S OWN FINANCIAL OR PERSONAL INTERESTS TOPIC H

• PURPOSE: TO PRESERVE INDEPENDENT JUDGMENT

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OTHER RIGHTS

• TO KNOW THE ENGAGEMENT TERMS R. 1.5(b)

– FEES, EXPENSES, LIMITATIONS, ETC.

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RIGHT TO COMMUNICATION R. 1.4

• MUST KEEP CLIENT REASONABLY AND PROMPTLY INFORMED

• A BIG PROBLEM IN PRACTICE

• WE ALWAYS “MEAN TO” COMMUNICATE, BUT WE PUT IT OFF TO ATTEND TO OTHER THINGS

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AN EASY SOLUTION FOR COMMUNICATION DUTY

• FRANK’S RULE: NOTIFY CLIENT OF ALL HAPPENINGS, SAME DAY; ATTACH PERTINENT PAPERS

• EVEN IF YOU HAVE NOTHING YET TO RECOMMEND

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MALPRACTICE CLAIMS: NO QUIET SETTLEMENTS

• SETTLING CLIENT CLAIM AGAINST LAWYER REQUIRES ELABORATE ADVICE AND CONSENT R. 1.8(h)(2)

– CANNOT BE DONE QUIETLY C 15

– EVEN POTENTIAL CLAIMS FALL UNDER THIS RULE R. 1.8(h)(2)

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WHAT YOU CAN DO

• MAKE AMENDS (W/O SETTLING)

–WORKS BEST IN CONJUNCTION WITH PROMPT CONFESSION OF FAULT

– SURPRISE TRIGGERS MANY MALPRACTICE CLAIMS

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DECISIONS DURING THE RELATIONSHIP

HOW TO HANDLE THE CASE

CLIENT HAS THE FINAL SAY ON CERTAIN DECISIONS R. 1.2

(BUT CAN AUTHORIZE THE LAWYER TO DECIDE)

• SETTLEMENT TERMS• WHAT PLEA IN A CRIMINAL CASE• WHETHER TO TESTIFY IN A CRIMINAL

CASE

• LAWYER ROLE IS USUALLY AS CONSULTANT

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OTHER DECISIONS

• MAINLY TACTICS R. 1.2 C 2, 3

• LAWYER DECIDES, AFTER CONSULTATION WITH CLIENT

• BUT - - - →

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CLIENT HAS THE POWER TO TERMINATE

THE RELATIONSHIP• AT ANY TIME

• FOR ANY REASON OR NO REASON

R. 1.16 C4

• FEES MAY BE DUE – DON’T TRY TO COLLECT THEM

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LAWYER CAN WITHDRAW SOMETIMES R. 1.16

1. BY PROVISION IN THE ENGAGEMENT AGREEMENT or

2. FOR CLIENT FRAUD OR ILLEGALITY R.

1.16(b)(3) or3. “UNREASONABLY DIFFICULT” CLIENT

R. 1.16(b)(6) or4. ANY REASON, IF NO HARM TO CLIENT

R. 1.16(b)(1)

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LAWYER MUST WITHDRAW

• IF LAWYER NO LONGER HAS

PHYSICAL OR MENTAL CAPABILITY

TO CONTINUE WITHOUT IMPAIRING

THE REPRESENTATION R. 1.16(a)

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CAVEAT: WITHDRAWAL FROM A COURT CASE

• DEPENDS ON LOCAL LAW R. 1.16(c)

• USUALLY NEED THE JUDGE’S PERMISSION– IN ADDITION TO A RULE 1.16 GROUND

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RIGHT TO CONFIDENTIALITYR. 1.6

• ADDRESSED IN TOPIC B

• RULES APPLY DURING AND AFTER

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RIGHT TO LAWYER’S FREEDOM FROM CONFLICTS– TOPIC H: LAWYER’S OWN INTEREST

CONFLICT

– TOPIC I: CONFLICT WITH OTHER CURRENT CLIENT’S INTEREST

– TOPIC J: CONFLICT WITH FORMER CLIENT’S INTEREST

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SOME RIGHTS EVEN FOR PROSPECTIVE CLIENTS

R. 1.18

• TOPIC Q• PRE-SYNOPSIS HERE:

– NO USING OR REVEALING INFO, EXCEPT:• WHEN INFO BECOMES GENERALLY KNOWN

– NO TAKING ON ADVERSE FUTURE CLIENT, IN A RELATED MATTER, WHERE THE INFO COULD BE HARMFUL TO THE PROSPECTIVE PERSON

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