Chapter 5 Relationships Between Lawyers and Clients

A. Formation of the “lawyer-client” (or is it “client-lawyer”?) relationship

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.

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?

Choosing C’s pp. 281-83

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?

2. Offering advice as basis for C/L relationship pp. 285-93

“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

Togstad vs. Veseley (MN ’80)pp. 286-93

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 $650KIssue: did L Miller owe DUTY to Togstads? Contrast π testimony to Δ L/Miller pp. 287-889

Breach?

EW required where LM negligence claim. Also a K claim?Battle of Experts pp. 289-90

1. π Green? 2. Δ-1 McNulty?3. ***Δ-2 Hvass?

Held, evidencesufficient to sustain $650K verdict. pp. 290-91

1. 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)

Takeaway: when free initial consult

What is minimum a lawyer should do under these circumstances?*** N. 6, pp. 292-93 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”

Jones v. Barnes (1983) pp. 338-44

I: 6th 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.

D. Who calls the shots1. Competent adult C : 1.2(a) + 1.4

C: objectives of representation, after required consultation w/ L so C can make informed consent (IC) per 1.0(e), 1.4 supp. pp. 12-16

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”