Overview of the ACR
23 important questions on Overview of the ACR
Jones v Barnes (US 1983); Olfe v Gordon and the allocation of authority
Yet, the better course is to involve C in the deisionmaking process. Some cases have held that it is a violation of L's fiduciary duty to fail to follow C's explicit instructions. See Olfe v Gordon
ABA R requiring L to consult with C regarding "means"
ABA - C's Authority. 1.2(a) + 1.2, CMT 1
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ABA - L's Authority. 1.2(a), (d), and 1.2 CMT
- L presumptively has authority over the means by which the objectives of the rep are to be pursued, including technical, legal, and tactical matters. 1.2(a).
- L's authority is not absolute, but subject to a duty to consult w/ C. 1.2, CMT 2.
- L may not counsel or assist C in committing a criminal or fraudulent act. 1.2(d).
ABA - Agreements altering the scope of the rep?
ABA - definition of consent "confirmed in writing
Define consent "confirmed in writing." 1.0(b)
Oral Consent will suffice when
Rules where no consent is permitted (nonwaivable duties): 5 listed
- 1.7(b). Some concurrent rep conflicts
- 1.8(c). Preparation of an instrument conveying a substantial gift to L
- 1.8(d). Acquisition of media rights in subject of rep
- 1.8(e), (i). Providing financial assistance to C or acquiring an interest in the subject matter of litigation.
- 1.8(j). Sexual relationships with Cs.
Rules where written consent is required: 2 listed
- 1.5(C). Terms of a contingent fee arrangement.
- 1.8(a). Business transactions with Cs.
Rules where consent "confirmed in writing" is required: 1 general statement
Where informed consent (may be oral) is required: 4 listed
- 1.2(c). Limitation on the scope of the rep
- 1.6(a), 1.8(b). Disclosure or adverse use of conf info
- 1.15(a). Keeping C funds in a state other than where L's office is located
Where notice alone (not consent) is required: 3 listed
- 1.10(a)(2)(ii). Screen is employed to protect former C conf info in moving-L conflicts situation.
- 1.11(b)(2). Screen employs in former government L conflict situation.
- 1.12(b). Law clerk negotiating for employment w/ a party or a party's L (notice only to judge required).
Where c must be given an opportunity to consult with independent counsel and written advice to C stating as much: 2 listed
- 1.8(a)(1). Business transactions with Cs.
- 1.8(h)(2). Settlement of malpractice claims brought by former or current Cs
Where C must actually receive representation from independent counsel: 1 listed
- 1.8(h)(1). Prospective limits on L's liability (i.e., malpractice).
ABA R on Duty to communicate?
Under 1.4, L has a duty to:
- Keep C reasonably informed about the status of the matter
- provide information to C when requested
- give C sufficient information so that C can make decisions about the rep, where necessary
Identify ABA R: "L must inform C of any decision/circumstance for which C's informed consent is required"
Under 1.4(a)(2)--requiring L to consult w/ C regarding means--what should L do where C + L disagree
Identify ABA R: 'A L must keep C reasonably informed about the status of the matter.'
In plain english, what does 1.4(a)(3)--requiring L to keep C reasonably informed about matter--L to do
Identify the ABA R: 'L must comply w/ C's reaosnable requests for information'
Note that L doesn't have to respond to unreasonable requests for information, but client-relations considerations should motivate L to keep C informed
Identify the ABA R: "A L must consult with [inform] C about any relevant limitation imposed on L's conduct by the ethical rules or other law.
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