Download SCU Lecture 3.1 - Abide and Consult

John Steele, Attorney at Law
www.johnsteelelaw.com
SCU LEGAL PROFESSION
LECTURE 3.1: ABIDE & CONSULT
John Steele
Attorney at Law
www.johnsteelelaw.com
[email protected]
650-320-7662 (USA)
© John Steele 2010
Topics
1.
2.
3.
4.
Rule 1.2
Abide
Consult
Limitations on representation
A/C Relationship Lifecycle
1. Duties prior to A/C relationship
2. Creation of A/C relationship
3. Defining the ACR
4.
5.
6.
7.
8.
Identity of client
Scope of engagement
Lawyers’ duties to clients during ACR
Lawyers’ duties to non-clients during ACR
Clients’ duties to lawyers during ACR
Termination of ACR
Duties surviving ACR
Duties during ACR
 Authority (Abide/Consult) (MR 1.2) (CRPC 3-200)
 Competence (MR 1.1) (CRPC 3-110)
 Diligence/Zeal (MR 1.3) (CRPC 3-110(B)(1))
 Communication (MR 1.4) (CRPC 3-500, 3-510)
 Loyalty (MR 1.7-1.12) (CRPC 3-300, 3-310)
 Independent judgment (MR 2.1; CRPC 3-310)
 Confidentiality (MR 1.6) ( Cal B&P Code
§ 6068(e); CRPC 3-100)
 Safeguarding property (MR 1.15; case law)
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Rule 1.2
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1.2(a): Abide & Consult
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1.2(b): “Not an endorsement”
 “Not an endorsement
of the client’s
political, social or
moral views or
activities”
 Says who?
 Is choosing your
clients a moral choice?
 Is this a rule?
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1.2(c): Limitations on scope
 Reasonable
limitation
 Client gives
informed
consent
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1.2(d): Crimes and frauds
 Counsel or assist
 Crime or fraud
 May discuss
consequences, may in
good faith help
determine validity,
scope, meaning, or
application of the law
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Forbidden Representations
 Cannot counsel or assist client regarding criminal or
fraudulent conduct (MR 1.2(d))
 But CAN counsel about legal consequence and about
validity, scope, meaning, or application of law (MR
1.2(d))
 Cannot pursue litigation position w/o probable cause, or
for harassment, or to maliciously injure (CRPC 3-200)
 Cannot advise violation of law unless good faith belief in
its invalidity (CRPC 3-210)
 Cannot enter/continue ACR in violation of ethics rules
Let me repeat that
. . .
Lawyers may not . . .
 Counsel, commit or assist crimes!
 Counsel, commit or assist frauds!
 Violate the ethics rules!
2
Abide (as to objectives)
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Three Issues
1.
2.
3.
1.
2.
Competent client?
Lawful objective?
What’s an objective?
The goal
Settlement
3
Consult (as to tactics)
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Four Issues
1.
2.
3.
4.
What’s a tactic?
What is consulting?
What happens when the
client and you disagree?
(Can the client later repudiate
your tactics?)
4
Limitations on Scope of
Representation
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Scope of the representation
What’s in;
What’s out
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1.2(c): Limitations on scope
 Reasonable
limitation
 Client gives
informed
consent
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Examples
1.
2.
3.
Unbundled (e.g., family law)
Corporate GCs and big firms
Disaggregated law
Quiz!
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Self-Diagnostic Questions
 Paraphrase the rule concerning
the duties to “abide & consult”
 How does “abide & consult”
happen with organizational
clients?
 Give an example of an objective
and of a tactic.
Self-diagnostic Questions
 What decisions belong to the
criminal defendant?
 Does the criminal defendant
have the right to decide to
commit perjury?
 What two conditions must be
met before the lawyer can limit
the scope of the representation?
Self-Diagnostic Questions
 Give an example of limited
scope representation.
 There is a distinction regarding
lawyering and crime/fraud in MR
1.2(d). What is on either side of
that line?
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