TOPIC G: CLIENTS’ RIGHTS 2016 P.R. Prof. Janicke.
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Transcript of 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
2016 TOPIC H -- CLIENTS' RIGHTS 2
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]
2016 TOPIC H -- CLIENTS' RIGHTS 3
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)
2016 TOPIC H -- CLIENTS' RIGHTS 4
THIS PARTICULAR INFORMED CONSENT MUST DEAL WITH:
• ALLOCATION OF AUTHORITY R. 1.1 C7
• FEE-SHARING R. 1.5(e)
• ETC.
2016 TOPIC H -- CLIENTS' RIGHTS 5
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
2016 TOPIC H -- CLIENTS' RIGHTS 6
INDEPENDENCE OF JUDGMENT
• IS ESSENTIAL TO THE RELATIONSHIP
• ESP. WHERE 3RD PARTY IS TO PAY THE FEES
– CLIENT MUST APPROVE R. 1.8(f)
2016 TOPIC H -- CLIENTS' RIGHTS 7
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
2016 TOPIC H -- CLIENTS' RIGHTS 8
OTHER RIGHTS
• TO KNOW THE ENGAGEMENT TERMS R. 1.5(b)
– FEES, EXPENSES, LIMITATIONS, ETC.
2016 TOPIC H -- CLIENTS' RIGHTS 9
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
2016 TOPIC H -- CLIENTS' RIGHTS 10
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
2016 TOPIC H -- CLIENTS' RIGHTS 11
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)
2016 TOPIC H -- CLIENTS' RIGHTS 12
WHAT YOU CAN DO
• MAKE AMENDS (W/O SETTLING)
–WORKS BEST IN CONJUNCTION WITH PROMPT CONFESSION OF FAULT
– SURPRISE TRIGGERS MANY MALPRACTICE CLAIMS
2016 TOPIC H -- CLIENTS' RIGHTS 13
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
2016 TOPIC H -- CLIENTS' RIGHTS 15
OTHER DECISIONS
• MAINLY TACTICS R. 1.2 C 2, 3
• LAWYER DECIDES, AFTER CONSULTATION WITH CLIENT
• BUT - - - →
2016 TOPIC H -- CLIENTS' RIGHTS 16
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
2016 TOPIC H -- CLIENTS' RIGHTS 17
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)
2016 TOPIC H -- CLIENTS' RIGHTS 18
LAWYER MUST WITHDRAW
• IF LAWYER NO LONGER HAS
PHYSICAL OR MENTAL CAPABILITY
TO CONTINUE WITHOUT IMPAIRING
THE REPRESENTATION R. 1.16(a)
2016 TOPIC H -- CLIENTS' RIGHTS 19
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
2016 TOPIC H -- CLIENTS' RIGHTS 20
RIGHT TO CONFIDENTIALITYR. 1.6
• ADDRESSED IN TOPIC B
• RULES APPLY DURING AND AFTER
2016 TOPIC H -- CLIENTS' RIGHTS 21
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
2016 TOPIC H -- CLIENTS' RIGHTS 22
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
2016 TOPIC H -- CLIENTS' RIGHTS 23