Summary: 3) The Ac-R: Formation + Termination

Read the summary and the most important questions on 3) The AC-R: Formation + Termination

• 1 3) Terminating the AC-$

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• Implied-in-Fact, Full-on Professional Relationship - Restatement Test

  An AC-R can be created by the parties' conduct if: (1) The purported C behaved in such a way that a reasonable person in the L's position would believe that he was being asked to provide legal services; (2) L behaved in such a way that a reasonable person in C's position would believe that L either (a) agreed to provide legal services, or at least (b) did not refuse to do so.

• 4 key duties for L in a full-on AC-R (the Four Cs)

  1. Competence. 1.1. 
  2. Communications (duty of candor). 1.4, 2.1. 
  3. Confidentiality. 1.6. 
  4. Conflicts (duty of loyalty). 1.7, 1.8. 

• Two Types of AC-R

  1. Full-on Professional Relationship [can be implied in fact]
  2. Quasi-Client R 

• ABA Rs for Duty of Candor (Communicating w/ C)

  1.4; 2.1.

• ABA Rs for Duty of Loyalty (No Conflicts)

  1.7, 1.8.

• "Prospective Client" - ABA definition

  1.18(a). Anyone who discusses the possibility of forming a professional relationship with L with respect to a matter.

•  Duty of Loyalty to Prospective Clients?

  Yes. 1.18, CMT 2. 
  
  If L learns confidential information from a prospective client, he will be disqualified from representing adverse parties to prospective-C in the future. 

• ABA rule for revealing confidential info of prospective Cs?

  1.18(B). L may not reveal confidential information learned from a prospective-C w/o consent.

• ABA Rule on Mandatory Withdrawal

  1.16(a). 
  
  L must either refuse to being representing a C or withdraw from an existing AC-R if: (1) C fires L, (2) L is unable--by reason of physical or mental disability--to rep C adequately, (3) the rep would result in a violation of [a] the rules of professional conduct (i.e., create a conflict of interest] or [b] other laws (I.e., C's conduct constitutes an action fraud under tort or securities law). 

• Generally Cs can fire Ls for any reason. What is the biggest exception?

  Whistle-blowing, in-house Ls. 
  
  Since in-house Ls are also an employee of the entity, they might be covered by employment laws that protect ordinary employees who whistle-blow (protected from retaliatory discharge for brining safety/regulatory concerns to management's attention)