The Lawyer-Client Relationship Models of the Relationship Traditional Model Lawyer is the dominant party, assessing the best course of conduct for the client Client is passive, relying on the judgment of the lawyer Lawyer identifies the problem and the solution Participatory or Collaborative Model Lawyer and client share responsibility for success Lawyer actively solicits frequent client input Lawyer tailors options and solutions to the needs of the client Lawyer provides sufficient information to allow client to make informed decisions whenever appropriate Hired Gun Model Client is dominant, calls the shots; lawyer is passive recipient of instructions Nature of the AC Relationship Fiduciary Relationship Agency Relationship Contractual Relationship Express Contract Implied Contract Creating the Relationship An AC relash arises when: Express K: A person manifests an intent that the lawyer provide legal services and the lawyer agrees Implied K: A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake the representation, and the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the services The reasonableness is a question of fact NOT a unilateral relash A tribunal appoints a lawyer to represent a client Trial and appellate courts often appoint lawyers to represent indigent clients and clients with unpopular causes. A lawyer must not seek to avoid these appointments except for good cause. MR 6.2 Good cause examples: Violation of law or disciplinary rule. MR 6.2a Unreasonable financial burden on the lawyer. MR 6.2b Personal Inability to Represent Client Effectively. MR 6.2c Express Contractual Relationship Written Fee Agreement Under MR: Always preferable to have fee agreement in writing. MR 1.5b Must have a writing if contingency fee. MR 1.5c Under CA law: Must have a writing if contingency fee. BP 6147 Must have a writing if fees and expenses will exceed $1000 and client is not a corporation or a former/continuing client where nature of agreement may be implied based on prior work. BP 6148a, d2, d4 A Good Retainer Agreement Specifies: Scope of the services Including any limitations Client's duties Specifies client conduct amounting to a breach of the agreement, such as failing to pay fees or making representation difficult
The Lawyer-Client Relationship Models of the Relationship Traditional Model Lawyer is the dominant party, assessing the best course of conduct for the client Client is passive, relying on the judgment of the lawyer Lawyer identifies the problem and the solution Participatory or Collaborative Model Lawyer and client share responsibility for success Lawyer actively solicits frequent client input Lawyer tailors options and solutions to the needs of the client Lawyer provides sufficient information to allow client to make informed decisions whenever appropriate Hired Gun Model Client is dominant, calls the shots; lawyer is passive recipient of instructions Nature of the AC Relationship Fiduciary Relationship Agency Relationship Contractual Relationship Express Contract Implied Contract Creating the Relationship An AC relash arises when: Express K: A person manifests an intent that the lawyer provide legal services and the lawyer agrees Implied K: A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake the representation, and the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the services The reasonableness is a question of fact NOT a unilateral relash A tribunal appoints a lawyer to represent a client Trial and appellate courts often appoint lawyers to represent indigent clients and clients with unpopular causes. A lawyer must not seek to avoid these appointments except for good cause. MR 6.2 Good cause examples: Violation of law or disciplinary rule. MR 6.2a Unreasonable financial burden on the lawyer. MR 6.2b Personal Inability to Represent Client Effectively. MR 6.2c Express Contractual Relationship Written Fee Agreement Under MR: Always preferable to have fee agreement in writing. MR 1.5b Must have a writing if contingency fee. MR 1.5c Under CA law: Must have a writing if contingency fee. BP 6147 Must have a writing if fees and expenses will exceed $1000 and client is not a corporation or a former/continuing client where nature of agreement may be implied based on prior work. BP 6148a, d2, d4 A Good Retainer Agreement Specifies: Scope of the services Including any limitations Client's duties Specifies client conduct amounting to a breach of the agreement, such as failing to pay fees or making representation difficult
Ethical-Lawyering-Dudovitz-Fall-2010.docx