Attorney-Client Relationship & Competence

Business vs. Profession

• The practice of law is considered a profession with responsibilities beyond those of a typical business.
• Lawyers have special roles, responsibilities, and privileges regulated by the FL Supreme Court.
• These regulations aim to protect both the public and lawyers in their interactions.
• The lawyer-client relationship involves a power imbalance.
• Lawyers provide specialized services to clients.

Attorney/Client Relationship Commencement & Termination

• Determining when the attorney/client relationship begins and ends is crucial.
• ABA Model Rules and FL Rules govern this relationship.
• The course emphasizes ABA rules.
• Lawyers operate from a position of power.

Rule 1.1: Competence

• Lawyers must provide competent representation, requiring necessary legal knowledge, skill, thoroughness, and preparation.
• What is "reasonably necessary" is detailed in the comment section.
• Special training or prior experience is not always required, as lawyers are continuously learning.
• An attorney-client relationship may be created when legal advice is sought, triggering duties like diligence, communication, confidentiality, and conflict of interest management.

Comments on Rule 1.1

• Factors determining requisite knowledge and skill: complexity/specialization, lawyer's experience/training, preparation, and feasibility of referral/consultation.
• Proficiency expected of a general practitioner in many cases, but expertise may be needed in certain situations.
• Newly admitted lawyers can be as competent as experienced ones; fundamental legal skills are universally applicable.
• Lawyers can achieve competence in novel fields through study or by associating with competent lawyers.
• In emergencies, advice may be given without the usual skill level, but limited to what's reasonably necessary.
• Lawyers can accept representation if competence can be achieved through reasonable preparation.
• Thoroughness and Preparation: Competent handling involves factual/legal analysis and procedures meeting competent practitioner standards; adequate preparation is essential.
• Attention and preparation required depends on what is at stake.
• Agreements with clients can limit the scope of representation.

Retaining or Contracting with Other Lawyers

• Informed consent from the client is generally needed before retaining outside lawyers.
• The lawyer must reasonably believe that outside lawyers will contribute to competent and ethical representation.
• Reasonableness of hiring outside lawyers depends on their qualifications, the nature of assigned services, and ethical standards in their jurisdictions.
• Lawyers from multiple firms should consult each other and the client about their roles and responsibilities.

Maintaining Competence

• Lawyers must stay updated on legal changes, including technology, through continuing study and education.

Rule 5.4 and Profit-Sharing Plans

• Rule 5.4(a)(3) includes an exception for profit-sharing compensation plans that involve non-lawyers.

Attorney's Role and Scope of Advice

• Providing specific legal advice can create an attorney-client relationship, triggering duties under Model Rule 1.1.
• A close family relationship can interfere and make disclaimers less effective.
• Complex documents, high stakes ($400K), and specific legal work (marking up a contract) indicate legal advice.
• An inadequate disclaimer may not properly put a client on notice about limitations.

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

• Addresses concerns about non-lawyers being involved in the practice of law, as they are not subject to professional responsibility rules.

Rule 1.16: Declining or Terminating Representation

• A lawyer MUST decline or withdraw from representation if:
  • It violates the Rules of Professional Conduct or other laws.
  • The lawyer's physical or mental condition impairs their ability to represent the client.
  • The lawyer is discharged.
  • The client seeks to use the lawyer's services to commit a crime or fraud.
• A lawyer MAY withdraw from representation if:
  • Withdrawal won't materially harm the client.
  • The client persists in criminal or fraudulent behavior.
  • The client has used the lawyer's services to commit a crime or fraud.
  • The client insists on repugnant actions or with which the lawyer has a fundamental disagreement.
  • The client fails to fulfill obligations to the lawyer.
  • Representation becomes an unreasonable financial burden.
  • Other good cause for withdrawal exists.
• The SHALL in (a) and MAY in (b) are very important distinctions here in this rule

Rule 6.2: Accepting Appointments

• Relates to an attorney's duty to accept court appointments.

Attorney Conduct in Non-Admitted States

• Interviewing witnesses via phone/email is generally permissible.
• Traveling to interview witnesses may raise concerns.
• Appearing in mediation/arbitration may be acceptable.
• Appearing in court without proper authorization is typically a violation.

Rule 5.5(c)(4)

• Allows attorneys to work temporarily out of state in situations beyond litigation and alternative dispute resolution.

Rule 5.5(c)(2)

• Provides a safe harbor for activities before pro hac vice admission if the attorney reasonably expects to be admitted.

Systematic and Continuous Presence

• Performing legal work with a systematic and continuous presence in a state where not admitted violates Rule 5.5(b).

Establishing Attorney-Client Relationship

• Answering legal questions can create an attorney-client relationship if the attorney knows or should know the company would rely on the answers.
• A previous attorney-client relationship does not in itself determine if a lawyer-client relationship currently exists.
• Payment is not required to establish a lawyer-client relationship.

Declining Court Appointments

• An attorney can decline a court appointment if they cannot provide competent representation due to personal beliefs.

Attorney-Client Privilege Examples

Email Examples

• Email from President of Corporation A to Vice President: "Our General Counsel has advised me that in order to form a binding contract with University X, we need to agree on requirements 1, 2, and 3.” → PRIVILEGED bc communicating seeking legal advice
• Email from Vice President to Corporation As Sales Manager: “President has instructed us to proceed to negotiate a contract for bookstore services with University X. Get to this ASAP.” → NOT PRIVILEGED, not seeking legal advice—basically instructions from one cop officer to another
• Email from Sales Manager to Vice President: “I’ve just met with Manager of University X and we have a handshake deal. How much detail do we need in the written contract?” → NOT PRIVILEGED; no lawyer involved
• Email from Vice President to President: “Sales Manager reached a great deal for us. Let’s keep the written contract simple and direct to close the deal ASAP.” → NOT PRIVILEGED; no lawyer advice involved/ no privilege communication
• Email from President to General Counsel: “Draft this contract as quickly as possible. Draft a contract including 1, 2, 3 and also 4, 5 and 6.” → PRIVILEGED
• Email from General Counsel to in-house Paralegal: “The President wants a contract with 1 through 6. Please take language from our prior contract with University Z to get the process started.” → PRIVILEGED—preparation of documents involving legal representation
• Email from General Counsel to Vice President: “Here is my proposed contract attached to this email. Show this to University X, but tell them it is non-negotiable.” → PRIVILEGED—instructing the lawyer what to do under what circumstances
• Email from Vice President to University X: “Here is our proposed contract. Our General Counsel says since we are giving you such a good deal, we must insist on these terms as written. Please send it back with your signature.” → NOT PRIVILEGED
• Emails by non-lawyers within each party, and between Corporation A and University X, following execution of the contract, disputing its interpretation, and at times indicating they rely on their counsel’s advice. → NOT PRIVILEGED
• As a result of a dispute on contract interpretation between the parties, Vice President discusses this with President and then contacts General Counsel about her interpretation of the contract and General Counsel responds with an email. Vice President forwards this email to University X. → PRIVILEGED—communication about the email is privileged

Rule 502 Attorney Client Privilege, Limitations on Waiver

502(b) Inadvertent Disclosure

• When disclosure [of privileged information is] made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
• The disclosure is inadvertent
• The holder of the privilege or protection took reasonable steps to prevent disclosure
• The holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

502(d) Order

• Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding

Attorney-Client Privilege and Disclosure

• Voluntarily disclosing a report to the DOJ waives privilege even with a confidentiality agreement.
• A court order protecting against waiver of the privilege can apply in subsequent litigation under Federal Rule of Evidence 502(d).

Restatement § 82 and the Crime-Fraud Exception

• Sets forth the majority view concerning the crime-fraud exception to the attorney-client privilege which states:
• The attorney-client privilege does not apply to a communication occurring when a client:
  • consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, OR
  • regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud.”