Legal Ethics: Attorney-Client Relationship

• These notes cover professionalism, legal ethics, attorney-client relationships, competence, advertising, fees, confidentiality, work product, and more. They are based on the ABA Model Rules and relevant case law.

Introducing Professionalism and Legal Ethics

• The legal profession has responsibilities beyond economic interests, setting it apart from a typical business.
• Lawyers have unique roles, responsibilities, and privileges regulated by authorities like the Florida Supreme Court.
• These regulations aim to protect the public and lawyers.
• The dynamic between lawyers and clients involves a power imbalance, making ethical responsibilities crucial.

Attorney-Client Relationship: Formation and Termination

• The attorney-client relationship starts when someone reasonably believes they are seeking legal advice and a lawyer agrees, either expressly or impliedly by providing specific advice.
• Formal agreements are not mandatory for the relationship to exist.
• Sharing confidential information during initial consultations can create duties of confidentiality, even without formal representation.
• An attorney-client relationship can be implied if the client reasonably relies on the attorney’s legal advice, even without a signed contract.
• The relationship concludes when the representation’s scope is complete, the client discharges the lawyer, or the lawyer withdraws.
• Lawyers cannot unilaterally withdraw from a case in litigation without court approval once representation has started.
• Even post-termination, duties of confidentiality and conflict avoidance persist indefinitely.
• Rule 1.2(c) allows lawyers to limit representation scope if reasonable and with informed client consent

Mandatory Withdrawal

• Lawyers must withdraw if representation violates ethics rules, their condition impairs their ability, or the client uses their services for fraud or crime.

Permissive Withdrawal

• Lawyers may withdraw if it can be done without harming the client, the client fails to fulfill obligations, or the lawyer finds the representation repugnant.
• A court order mandating withdrawal or the client's death/dissolution (for personal matters/corporations) also allows withdrawal.
• A fixed time period expiring, if agreed in the contract, also allows withdrawal.

Competence (Rule 1.1)

• Lawyers must provide competent representation, possessing the necessary legal knowledge, skill, thoroughness, and preparation.
• Lawyers need not have previous experience in every area of law but must attain the necessary competency.
• Emergency situations may permit limited advice if referral is impractical, but caution is needed.
• Lawyers can achieve competence through study or by consulting or associating with a more experienced attorney.
• Competency is evaluated based on the matter's complexity, the lawyer's experience, training, ability to prepare, and the feasibility of consulting with other lawyers.
• Thoroughness and preparation involve inquiry, analysis, and utilization of appropriate professional techniques.
• Working with non-firm attorneys requires informed client consent and ensures continued competency.
• Maintaining competence necessitates staying updated with legal changes and technology.

Professional Independence (Rule 5.4)

• Lawyers cannot share legal fees with nonlawyers, except for exceptions like retirement benefits or profit-sharing per Rule 5.4(a)(3).
• Goal is to prevent nonlawyers from influencing legal judgements and to maintain the independence of legal counsel.
• Forming partnerships with nonlawyers is prohibited if the partnership activities involve practicing law, as stated in Rule 5.4(b).

Unauthorized Practice and Multijurisdictional Practice (Rule 5.5)

• Lawyers cannot practice law in jurisdictions where they are not admitted, nor can they aid others in doing so.
• Temporary legal services may be permitted under specific conditions, such as associating with a local attorney or concerning a pending tribunal.
• Provides continuous in-house counsel services to an employer if pro hac vice admission is not required.
• Pro hac vice admission is a temporary authorization allowing out-of-state attorneys to practice in a specific case.
• Client consent does not resolve unauthorized law practice issues.

Accepting Appointments (Rule 6.2)

• Lawyers should accept court appointments unless doing so would violate professional rules or impose an unreasonable financial burden.

Declining or Terminating Representation (Rule 1.16)

• Mandatory withdrawal is required if continued representation would violate ethical rules, if the lawyer's physical or mental condition impairs their ability to represent the client, or if the lawyer is discharged.
• Permissive withdrawal is allowed if it won't materially harm the client, if the client persists in criminal or fraudulent behavior, or if the lawyer finds the client's actions repugnant.

Solicitation (Rule 7.3)

• Lawyers cannot solicit professional employment via live person-to-person contact, unless with other lawyers, family, close friends, or prior professional relationships.
• Offering pro bono services without personal gain is an exception.
• General advertising is allowed if it is truthful and not misleading.
• Written, recorded, and electronic communications must be labeled "Advertising Material" unless exempted.
• Solicitation of former clients falls within an exception and is permitted. Rule 7.3(b)(2).

Advertising (Rules 7.1 & 7.2)

• Prohibits false or misleading communications about a lawyer’s services

Regulations

• Advertising must remain truthful and not misleading.
• Law firm names must accurately reflect the firm’s composition.

Fees (Rule 1.5)

• Fees must be reasonable, considering case complexity, jurisdiction, time, and effort needed.
• Contingency fees are permissible, but not in divorce, child custody, or criminal cases; they must also be reasonable and documented in writing.
• Contingency fees are not allowed in divorce or criminal cases.
• Written fee agreements are advisable but not always compulsory.
• Fee division among lawyers not in the same firm necessitates proportionality to services, reasonableness, and client agreement.

Lodestar Method

• Reasonable number of hours multiplied by appropriate hourly rate.
• Courts allow enhancements for exceptional performance but are rare and based on superior performance and results by identifying extraordinary circumstances to justify a fee enhancement.
• Markup on a contract lawyer's work should not be excessive or misleading in a way that would constitute an unreasonable fee under professional conduct rules.

Confidentiality of Information (Rule 1.6)

• Lawyers must not reveal information relating to client representation unless the client consents or an exception applies.
• Exceptions include preventing death, substantial bodily harm, crime, fraud, compliance with law, or defending against legal claims.
• Lawyers must reasonably prevent unauthorized disclosure.

Attorney-Client Privilege

• Applies in testimonial settings, such as court proceedings and depositions.
• Follows state law in state courts and federal law in federal courts. Protection covers communications between privileged persons, in confidence, for legal assistance purposes.
• General business inquiry may be privileged, only if the primary interest is to seek legal advice.
• Privilege does not apply to an attorney's non-verbal observation, but solely communicated information.
• Communications intended for public filings are not privileged.

Crime-Fraud Exception

• Privilege does not apply if a client seeks legal advice to commit fraud, in which case it is waived.

Conflicts of Interest and Business Transactions with Clients (Rule 1.8)

• Attorneys can accept equity in a company as compensation, if the terms are fair and reasonable, the client is advised to seek independent legal counsel, and the client provides informed consent in writing.
• Modest gifts (e.g., food, transportation) are permitted for indigent clients in pro bono cases. Rule 1.8(e).
• Lawyers cannot enter into business transactions with clients unless the terms are fair, the client is advised to seek independent counsel, and the client gives informed consent.

Safekeeping Property (Rule 1.15)

• Unearned fees must be kept in a trust account.
• Funds remain in trust until earned.

Clients with Diminished Capacity (Rule 1.14)

• Lawyers are allowed to take protective action, including seeking a guardian if necessary.

Scope of Representation and Authority (Rule 1.2)

• States that settlement decisions belong to the client.

Responsibilities of Supervising Lawyers (Rule 5.1)

• Requires a supervising attorney to ensure subordinates comply with professional conduct rules, including competence.

Diligence (Rule 1.3)

• Requires lawyers to act reasonably and promptly when representing a client. Also prevents them from unilaterally ceasing work due to nonpayment without proper withdrawal.
• A lawyer who follows his or her client’s instructions about excluding evidence of adultery is not liable for malpractice.

Malpractice (Rule 1.8(h))

• Lawyers cannot limit malpractice liability unless the client is independently represented.

Ineffective Assistance of Counsel

• Two-Prong Test: Deficient Performance & Prejudice
• To establish ineffective assistance of counsel, under Strickland v. Washington, a defendant must indicate: Attorney’s performance fell below objective standards of reasonableness and there is a reasonable probability that, but for the errors, the outcome would have been different.

Work-Product Doctrine

• Work-product consists of tangible or intangible material prepared in anticipation of litigation
• Protects materials prepared for litigation from an adversary’s discovery request
• Protects an attorney’s legal strategy and preparations.
• It differs from the attorney-client privilege.
• Prevents free-riding on another lawyer’s efforts.
• Consists of tangible or intangible material prepared in anticipation of litigation.
• Waiver occurs when the client or lawyer voluntarily discloses the work product to a third party likely to share it with an adversary.

Work Product

• Opinion Work Product is never discoverable; consists of attorney’s mental impressions, legal theories, and litigation strategy.
• Fact Work Product may be discoverable if the opposing party shows substantial need and undue hardship in obtaining equivalent materials by other means.

Federal Rules for Work Product

• Federal Rule of Civil Procedure 26(b)(3): Protects attorney work product, allowing discovery only if the requesting party shows substantial need and undue hardship.
• Federal Rule of Criminal Procedure 16(a)(2) & (b)(2): Exempts attorney work product from discovery in criminal cases.

Attorney-Client Privilege and Work Product; Limitations on Waiver

• Inadvertent disclosure of privileged information when 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; and
• the holder promptly took reasonable steps to rectify the error, including following Federal Rule of Civil Procedure 26 (b)(5)(B).