The Attorney-Client Relationship

PLEASE FOLLOW INSTRUCTIONS AND FOLLOW READINGS CAREFULLY.

TOPIC: THE ATTORNEY-CLIENT RELATIONSHIP IN 2 PARTS.  (PART 1) DUTY OF TRUTHFULNESS /DUTY OF CANDOR; (PART 2) INTRODUCTION TO PROFESSIONAL RESPONSIBILITY).

This topic introduces you to the specifics of the attorney-client relationship and provides a framework for your understanding of the ethical responsibilities governing that relationship. It reinforces the greater responsibilities that a Christian legal professional has to a client as compared to his or her secular counterparts.

  • Explain the importance of competent representation.
  • Identify the regulations related to professional fees.
  • Distinguish between legal malpractice and ethical misconduct.
  • Apply principles from a biblical worldview to the attorney-client relationship.

Discussion Assignment Instructions 

Students must support their assertions with at least 2 scholarly citations in Bluebook format. Each reply must incorporate at least 1 scholarly citation in Bluebook format. Any sources cited must have been published within the last five years. Acceptable sources include the textbook, law review articles, peer reviewed journal articles, and the Bible.

ABA Model Rules Assignment

Overview:

This assignment will require research into the ABA Model Rules of Professional Conduct and scripture. You will thoroughly analyze the model rule through the lens of scripture and determine whether the model rule or the scripture imposes a greater ethical responsibility on the Christian legal professional. This analysis requires research into the moral and ethical underpinnings of each model rule and requires one to apply a Biblical worldview to shape the analysis. This research project will develop a deeper understanding of the Model Rules of Professional Conduct, enhance research and writing skills, and will show the importance of applying a Biblical worldview to the practice of law.

Instructions:   PLEASE FOLLOW

You will complete this assignment in two (2) parts. For each part of this assignment, you will select ten (10) of the ABA Model Rules of Professional Conduct.

You can locate a link to the most current version of the ABA Model Rules of Professional Conduct in the Reading and Study folder of your assigned module under the tab Website: ABA Model Rules of Professional Conduct.

You may select any model rule, or specific subsection of a model rule, but you may only use each rule once. You must insert the model rule, verbatim, into a blank document that you create. Choose an appropriate passage to incorporate from the Bible that illustrates the moral duty imposed by Scripture. (You may select any passage of Scripture provided that you can link the passage, in an appropriate manner, to the principle outlined in the selected rule.) You must insert the passage, verbatim, immediately following the model rule. In at least 150 words, explain how that particular passage relates to the selected model rule. For each rule, you must indicate whether the biblical standard would impose greater ethical responsibility on the Christian legal professional than the model rule. You must cite each source in Bluebook format using footnotes.

REPLIES CONTENT:  Classmates’ posts are directly answered in a substantive and logical manner. The reply shows logical flow that demonstrates critical legal reasoning. Major points are stated clearly. Major points are supported with legal research, scripture or thoughtful analysis.

MODEL RULES SELECTION: Excellent details and examples are provided. The three requirements are met.

  1. Ten distinct model rules are selected.
  2. Model rules are formatted properly.

Model rules are only used once.

THREAD COUNT:  All key components of the Discussion are answered in the thread. The post has a clear, logical flow that demonstrates critical legal reasoning. Major points are stated clearly. Major points are supported with legal research, scripture, or thoughtful analysis.

GRAMMAR AND SPELLING, BLUEBOOK FORMATTING:  Spelling and grammar are correct. Sentences are complete, clear, and concise.

Paragraphs contain appropriately varied sentence structures. Where applicable, references are cited in current Bluebook format.

FOR YOUR REFERENCE: excerpts taken from Ch 2 of the textbook by: CRYSTAL, N.M. & GIESEL, G.M., Professional Responsibility (7th ed. 2019) — The Attorney-Client Relationship, all described in red.  It may seem lengthy, but it’s just excerpts for you to understand the Attorney-Client Relationship.

CHAPTER 2

The Attorney-Client Relationship

The Model Rules of Professional Conduct do not specify how an attorney-client relationship is formed, but the Restatement (Third) of the Law Governing Lawyers provides some guidance. Section 14 of the Restatement provides three ways in which an attorney-client relationship is formed:

  1. The person manifests to a lawyer the person’s intent that the lawyer provide legal services to the person and the lawyer manifests to the person consent to do so. In other words, an attorney-client relationship can be formed by mutual consent (an express attorney-client relationship).
  2. The person manifests intent to the lawyer that the lawyer provide legal services to the person and the lawyer fails to manifest lack of consent when the lawyer knows or reasonably should know that the person is reasonably relying on the lawyer to provide legal services (an implied attorney-client relationship).
  3. An attorney-client relationship can be formed if a tribunal appoints a lawyer to provide legal services (an attorney-client relationship by appointment).

A typical statement from the courts about the formation of the attorney-client relationship is that of the Georgia Court of Appeals in Calhoun v. Tapley: “All that is necessary is a ‘reasonable belief’ on the part of the would-be client that he or she was being represented by the attorney. A reasonable belief is one which is ‘reasonably induced by representations or . . . conduct’ on the part of the attorney.”  The issue of whether an attorney-client relationship exists can arise in connection with many aspects of professional responsibility. We will see that the issue of formation of an attorney-client relationship is particularly important when analyzing conflict of interest issues, the topic of Chapter 4. In this chapter we will examine the following aspects of the relationship: the duty of competence when the relationship is formed, the attorneys’ obligations regarding fees and expenses, documenting the

relationship through engagement letters or agreements, and decision-making authority between lawyer and client.

Competence is relevant to three issues:

  1. Competence is an ethical duty and thus its lack can be the basis of professional discipline.
  2. Defense counsel’s incompetence may amount to ineffective assistance of counsel, thus providing a basis for postconviction relief.
  3. A lack of competence may be the basis of a malpractice claim that results in a damage award.

The ethical duty of competence. Under the Model Rules of Professional Conduct, lawyers have an ethical duty to provide competent representation. The duty of competence is multidimensional, including knowledge of the law, skills and preparation. Despite this obligation, the level of representation provided by appointed counsel in criminal cases is often shockingly low, even in death penalty cases. Examples of cases in which lawyers have slept through substantial portions of the tria1or have been under the influence of alcohol or drugsare easy to find. One reason for the low level of representation by appointed counsel is that the compensation paid to such counsel is woefully inadequate in most states.

Regardless of the paucity of payment, lawyers who fail to adhere to their duty to provide competent representation may be subject to professional discipline.  For example, in Florida Bar v. Sandstrom6 the respondent represented the defendant in a prosecution for the murder of his wife, who died after the defendant struck her during an altercation. The defendant was convicted, but the court set aside his conviction because of ineffective assistance of counsel. The Florida Supreme Court imposed a 60-day suspension on defense counsel based on the following findings of fact by the referee in the case about defense counsel’s ineffective assistance at trial.

Sandstrom failed to take any pretrial depositions; failed to conduct a proper investigation as related to evidence available to establish that the proximate

Competence is relevant to three issues:

  1. Competence is an ethical duty and thus its lack can be the basis of professional discipline.
  2. Defense counsel’s incompetence may amount to ineffective assistance of counsel, thus providing a basis for postconviction relief.

3.A lack of competence may be the basis of a malpractice claim that results in a damage award.

Togstad v. Vesely, Otto, Miller & Keefe

Supreme Court of Minnesota 291 N.W. 2d 686 (1980)

PER CURIAM.

This is an appeal by the defendants from a judgment of the Hennepin County District Court involving an action for legal malpractice. The jury found that the defendant attorney Jerre Miller was negligent and that, as a direct result of such negligence, plaintiff John Togstad sustained damages in the amount of $610,500 and his wife, plaintiff Joan Togstad, in the amount of $39,000. Defendants (Miller and his law firm) appeal to this court from the denial of their motion for judgment notwithstanding the verdict or, alternatively, for a new trial. We affirm.

In August 1 971, John Togstad began to experience severe headaches and on August 1 6, 1971, was admitted to Methodist Hospital where tests disclosed that the headaches were caused by a large aneurism on the left internal carotid artery. The attending physician, Dr. Paul Blake, a neurological surgeon, treated the problem by applying a Selverstone clamp to the left common carotid artery. The clamp was surgically implanted on August 27, 1971, in Togstad’s neck to allow the gradual closure of the artery over a period of days.

. . . The greatest risk associated with this procedure is that the patient may become paralyzed if the brain does not receive an adequate flow of blood.

In the early morning hours of August 29, 1971, a nurse observed that Togstad was unable to speak or move. At the time, the clamp was one-half (50%) closed. Upon discovering Togstad’s condition, the nurse called a resident physician, who did not adjust the clamp. Dr. Blake was also immediately informed of Togstad’s condition and arrived about an hour later, at which time he opened the clamp. Togstad is now severely paralyzed in his right arm and leg and, is unable to speak.

[Plaintiffs’ medical expert testified that Togstad’s paralysis and loss of speech was due to a lack of blood supply to his brain and that the negligence of Dr. Blake and the hospital prevented the clamp from being opened in time to avoid permanent brain damage.] Specifically, Dr. Woods claimed that Dr. Blake and the hospital were negligent for (1 ) failing to place the patient in the intensive care unit or to have a special nurse conduct certain neurological tests every half-hour; (2) failing to write adequate orders; (3) failing to open the clamp immediately upon discovering that the patient was unable to speak; and (4) the absence of personnel capable of opening the clamp. [Defendants’ medical expert testified that Togstad’s condition was caused by blood clots going to the brain through the carotid artery and that the blood clots did not result from the clamp procedure.] About 14 months after her husband’s hospitalization began, plaintiff Joan Togstad met with attorney Jerre Miller regarding her husband’s condition. Neither she nor her husband was personally acquainted with Miller or his law firm prior thought there was no liability for malpractice in the case. Consequently, Miller did not communicate with Mrs. Togstad further.

On cross-examination, Miller testified . . . “Certainly, she was seeking my opinion as an attorney in the sense of whether or not there was a case that the firm would be interested in undertaking.”

[Plaintiffs’ legal experts testified that when consulted about a medical mal e practice case,] the “minimum” an attorney should do would be to request med” iCal authorizations from the client, review the hospital records, and consult with an expert in the field Hvass stated that he had no recollection of Miller’s calling him in October 1972 relative to the Togstad matter. He testified that:

when a person comes into me about a medical malpractice action, based upon what the individual has told me, I have to make a decision as to whether or not there probably is or probably is not, based upon that information, medical malpractice. And if, in my judgment, based upon what the client has told me, there is not medical malpractice, I will so inform the client.

Hvass stated, however, that he would never render a “categorical” opinion. In addition, Hvass acknowledged that if he were consulted for a “legal opinion” regarding medical malpractice and 14 months had expired since the incident in question, “ordinary care and diligence” would require him to inform the party of the two-year statute of limitations applicable to that type of action.

This case was submitted to the jury by way of a special verdict form. The jury found that Dr. Blake and the hospital were negligent and that Dr. Blake’s negligence (but not the hospitals) was a direct cause of the injuries sustained by John Togstad; that there was an attorney-client contractual relationship between Mrs. Togstad and Miller; that Miller was negligent in rendering advice regarding the possible claims of Mr. and Mrs. Togstad; that, but for Miller’s negligence, plaintiffs would have been successful in the prosecution of a legal action against Dr. Blake; and that neither Mr. nor Mrs. Togstad was negligent in pursuing their claims against Dr. Blake. The jury awarded damages to Mr. Togstad of $610,500 and to Mrs. Togstad of $39,000.

In a legal malpractice action of the type involved here, four elements must be shown: (1) that an attorney-client relationship existed; (2) that defendant acted negligently or in breach of contract; (3) that such acts were the proximate cause of the plaintiffs’ damages; (4) that but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim. See Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (1970).

[The court first discussed prior cases in which claims for legal malpractice were based either on tort or contract theories.] We believe it is unnecessary to decide whether a tort or contract theory is preferable for resolving the attorney-client relationship question raised by this appeal…. IW]e believe a jury could properly find that Mrs. Togstad sought and received legal advice from Miller under circumstances which made it reasonably foreseeable to Miller that Mrs. Togstad would be injured if the advice were negligently given. Thus, under either which clients, and in some cases third parties, can recover damages from lawyers (or their malpractice insurers) for some form of lawyer misconduct.When a client claims that a lawyer mishandled a legal matter, the client’s cause of action will typically be for negligence. The duty of care that lawyers owe their clients requires them to “exercise the competence and diligence normally exercised by lawyers in similar circumstances.”  Lawyers who practice in a specialized field, such as securities or tax, are held to the standard of care normally exercised by specialists.

Togstad contains a nice summary of many of the principal doctrines that apply when a legal malpractice case is based on negligence:

  • the elements of the cause of action (duty, breach, causation, and damages), (b) the requirement of expert testimony; proof of the “case within a case” in order to establish causation in a legal malpractice cases arising out of litigation, and the defense of judgmental immunity.

One of the essential elements of a cause of action for professional negligence is the existence of an attorney-client relationship. As Togstad shows, however, lawyers have duties to prospective clients who consult them for advice even if the lawyer does not accept the case. With regards to ethical duties, Model Rule 1.18(a) provides that “[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Comment 9 to Rule 1.18 states that the ethical duty of competence stated in Rule 1.1 for clients applies to prospective clients if the lawyer gives advice on the merits to the prospective client.

Other civil liability to clients. If a lawyer in the course of representation violates a fiduciary obligation to the client—for example, by representing conflicting interests—then the client may have a cause of action for breach of fiduciary duty.In some cases, clients have alleged that their lawyers misrepresented facts to them or failed to disclose material information giving rise to causes of action for fraud, misrepresentation, or nondisclosure.

Civil liability to third parties. Causes of action by nonclients against lawyers have traditionally been much more difficult to sustain than causes of action by clients because of the “privity’ rule. Under this rule, lawyers generally have not been liable to persons other than their clients. The privity rule has been justified for two reasons: First, liability to nonclients would create conflicts of interest between lawyers’ duties to their clients and their duties to third persons. Second, liability to nonclients would expose lawyers to potentially vast damages of uncertain amount and scope. While the privity rule remains strong, courts have recognized lawyer liability to third parties when it is clear that the third party is an intended beneficiary of the lawyer’s services. For example, in Thorsen v. Richmond Society for the Prevention of Cruelty to Animals,the court recognized the charity as an intended beneficiary under a will and allowed the charity’s malpractice action against the attorney who drafted the will for not drafting the will consistent with the testator’s intent. Despite these policies, the privity rule has been eroded in recent years, and lawyers are increasingly being held liable to third parties.

The relationship between the rules of professional conduct and malpractice liability. What is the relationship between the rules of professional conduct and malpractice liability?The Model Rules impose an obligation of competence on lawyers. The Model Rules, however, state that violation of the rules is not itself a basis for malpractice liability. Thus, merely because a lawyer has violated the rules of professional conduct does not per se produce malpractice liability. To establish malpractice liability for negligence, it is necessary to show that the attorney’s conduct fell below generally accepted standards of conduct in the profession. This standard typically requires expert testimony.Most courts will allow experts to consider rules of ethics in deciding whether the attorneys conduct did not meet generally accepted standards of the profession.

Causation and damages. In addition to establishing that a lawyer owed a duty and the lawyer breached the duty by not rendering services in accord with the standard of care, to establish malpractice liability a plaintiff must also prove that the plaintiff suffered damages. Lastly, the plaintiff must prove that the attorneys breach of duty caused the plaintiff’s damages.

Atlee was able to negotiate a settlement of the medical malpractice action for $100,000, which Carnes agreed to accept. Carnes signed a general release and received a check for $40,000. When Carnes received the check, she was uncertain how Atlee had computed her $40,000 payment, but she was hesitant to ask. A few days later she was still troubled by the amount of the check, so she called Atlee’s office and spoke to his secretary, who told Carnes that the amount of her check was determined as follows:

  
Settlement proceeds$100,000
Less 45% legal fee($45,000)
Less medical expert witness fee of 5%($5,000)
Less settlement advance from Atlee($2,500)
Less expenses advanced by Atlee($2,500)
Less Metropolitan Hospital Lien($5,000)
Proceeds to client$40,000

Carnes asked about the “expenses” and was told that these included copying, travel, and overhead.  Carnes has come to you for advice about her relationship with Lopez and Atlee and her settlement. She says that she doesn’t feel that Lopez and Atlee treated her fairly and she wants to know what, if anything, she can do about it.

The ethical obligation to charge reasonable fees. Model Rule 1.5(a) states that lawyers may not enter agreements for, charge, or collect unreasonable fees or expenses.Courts regulate the reasonableness of lawyers’ fees in three important ways: attorney discipline for charging unreasonable fees, court reduction of unreasonable fees, and court determination of fees pursuant to statute, rule, or contract term.

First, courts can discipline lawyers for charging excessive fees.Unfortunately, some studies have provided distressing documentation of lawyers’ improper billing practices, such as double billing and undisclosed markups on expenses.  In response to these abuses, the ABA Committee on Ethics and Professional Responsibility issued Formal Opinion #93-379 in which it addressed a number of issues regarding fees and expenses. The ABA committee advised lawyers who bill strictly on an hourly basis that it is improper for lawyers to charge more than the actual time expended. Thus, a lawyer who spends one hour in court for two clients cannot double bill by charging each client for the entire hour of time. Nor can a lawyer who bills on an hourly basis double bill travel time to two clients even if the lawyer is traveling for one client and working on a matter for another client while sitting on the airplane. Finally, a lawyer who spends ten hours researching an issue for a memo for one client and then reuses the research for another client cannot bill the second client for the ten hours of research the lawyer billed to the first client. An honest and ethical hourly biller who toils for ten hours may bill only a total of ten hours. Of course, a lawyer could charge the second client a flat fee for the service of providing the well-researched memo.

Second, courts have the power to reduce the amount of fees charged by attorneys if the court finds the fee to be unreasonable.53 The issue could arise in a variety of ways: in an action by the client to recover from the attorney an excessive fee retained by the attorney, in an action by the attorney to collect a fee, or in a collateral proceeding or motion incident to a matter already in court.  In addition, fee disputes between lawyer and client can be resolved through arbitration before a fee dispute resolution board established pursuant to court rule.Third, in some cases the court must determine a reasonable fee because the fee will be paid by the defendant pursuant to statute, court rule, or contract.

The ethical duty to inform the client of the basis or rate of the fee and expenses. Model Rule 1.5(b) imposes obligations on lawyers to reach clear agreements with their clients about the scope of representation and the basis of fees and expenses. Attorneys must confirm, preferably in writing, the basis or rate of the fee and expenses either before or within a reasonable time after they begin the representation. An exception applies if the lawyer is charging a client that the lawyer regularly represents on the same basis. The duty to provide information about fees and expenses applies not only at the commencement of the representation but continues even after the representation has ended.

A well-drafted engagement agreement, therefore, should provide for an increase in fees periodically. If such a provision is not a part of the original fee arrangement, the lawyer must secure the client’s agreement to a modification of the fee provision of the contract. And, of course, the new fee arrangement must be reasonable in accord with Model Rule.

Hourly billing. Lawyers charge fees for their services in a wide variety of ways. The fee can be determined strictly on an hourly basis; under this method, the fee is computed by multiplying the number of hours worked on the matter by each lawyer (or paralegal) times the hourly rate for that provider. Hourly rates for lawyers and paralegals are set based on their experience and type of practice in comparison with the fees commonly charged by other lawyers and paralegals providing similar services. Hourly fees are quite common in business and tax matters; lawyers engaged in civil defense litigation also typically bill on an hourly basis.

Contingent fees. Contingent fees are most commonly used by plaintiffs’ lawyers in personal injury matters, but are available in other types of cases as well.59 The essence of the contingent fee is that the lawyer’s right to receive compensation is contingent on the client’s receiving an award, either by settlement or judgment. Typically, contingent fees are based on a percentage of the amount recovered, and normally the fee varies depending on the stage at which the matter is concluded. Thus, a common contingent fee in a personal injury action is 25 percent if the matter is settled before trial.

The Restatement prohibits fees that are unreasonable or that are prohibited by law.

Rule 1.8(a) imposes three requirements on lawyers who enter into business transactions with clients.

  1. The terms of the transaction must be fair and reasonable to the client and the lawyer must fully disclose the terms in a writing that can be reasonably understood by the client.
  2. The lawyer must advise the client in writing of the desirability of seeking independent legal advice about the transaction and the client must have a reasonable opportunity to seek such advice.
  3. The client must give informed consent in a writing signed by the client to the essential terms of the transaction including an explanation of whether the lawyer represents the client in the transaction.

If a lawyer violates Rule 1.8(a), the court may invalidate the agreement. i17 Lawyers who violate Rule 1.8(a) may also be subject to professional discipline. 118 Some states may prohibit or limit lawyers from obtaining security interests or mortgages to secure payment of their fees. For example, in domestic cases in New York, lawyers may obtain a mortgage or security interest to secure their fees only when the engagement agreement provides for such an interest, notice of an application for a security interest is given to the other spouse, and the court grants approval of a security interest after submission of an application for counsel fees. In addition, a lawyer in New York may not foreclose a mortgage on a primary residence while the consenting spouse remains in the residence.

Limitations on acquiring an interest in litigation. Model Rule 1.8(i) prohibits a lawyer from acquiring a proprietary interest in the cause of action or subject matter of litigation with two exceptions: lawyer’s liens for fees and expenses, discussed in the next problem, and a reasonable contingent fee. The rule and its exceptions represent a balancing of contending interests. On the one hand, as comment 16 to Rule 1.8 explains, it is undesirable for lawyers to have a stake in litigation because it can undermine their independent judgment and may make it more difficult for clients to discharge their lawyers if they so desire. On the other hand, clients should have access to the court system; the system of contingent fees and litigation expense advances by lawyers to their clients supports this policy.

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