Client-Lawyer Relationship | North Carolina State Bar
(a) A lawyer employed or retained by an organization represents the entity. In effect, the lawyer-client relationship must be maintained through a constituent. Rules of Professional Conduct: Rule Client-Lawyer Relationship. Home / Bar Resources / Legal Ethics / Amended Rules / Rules of Professional Conduct. Attorney-Client Relationship Between a Lawyer and Her Firm; Reporting of Professional Misconduct. In preparing memoranda concerning her law firm's claim.
Decisions by Constituents 6. When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. However, different considerations arise when the lawyer knows, in regard to a matter within the scope of the lawyer's responsibility, that the organization is likely to be substantially injured by the action of a constituent that is in violation of law or in violation of a legal obligation to the organization.
In such circumstances, the lawyer must take reasonable remedial measure. It may be reasonably necessary, for example, for the lawyer to ask the constituent to reconsider the matter. If that fails, or if the matter is of sufficient seriousness and importance to the organization, it may be reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. The stated policy of the organization may define circumstances and prescribe channels for such review, and a lawyer should encourage the formulation of such a policy.
Even in the absence of organization policy, however, the lawyer may have an obligation to refer a matter to higher authority, depending on the seriousness of the matter and whether the constituent in question has apparent motives to act at variance with the organization's interest. At some point it may be useful or essential to obtain an independent legal opinion. In some cases, it may be reasonably necessary for the lawyer to refer the matter to the organization's highest responsible authority.
See paragraph c 3. Ordinarily, that is the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions highest authority reposes elsewhere, such as in the independent directors of a corporation. Even that step may be unsuccessful. The ultimate and difficult ethical question is whether the lawyer should circumvent the organization's highest authority when it persists in a course of action that is clearly violative of law or of a legal obligation to the organization and is likely to result in substantial injury to the organization.
These situations are governed by Rule 1. If the lawyer does not violate a provision of Rule 1. If the conduct of the constituent of the organization is likely to result in death or serious bodily injury to another, the lawyer may have a duty of revelation under Rule 1.
The lawyer may resign, of course, in accordance with Rule 1. Relation to Other Rules 8. The authority and responsibility provided in this Rule are concurrent with the authority and responsibility provided in other Rules. In particular, this Rule is consistent with the lawyer's responsibility under Rules 1. If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rule 1. The duty defined in this Rule applies to governmental organizations.
However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved.
In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulations. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Although in some circumstances the client may be a specific agency, it is generally the government as a whole.
For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule.
- Amended Rules
- Client-Lawyer Relationship
- Chapter 1. Lawyer-Client Relationship
When he asked his boss in the Charlotte, N. Even worse, Forquer was apparently using excess fees to cover office expenses and make various payments to himself, according to a ruling by the South Carolina Supreme Court in a disciplinary action against Bowden.
But in an agreement with the ODC that resulted in a reprimand by the court, Bowden acknowledged that it was his duty to tell clients that their bills were inflated and to assure that HUD-1 forms were accurate in closings he supervised. He also acknowledged an ethical duty to assure that other lawyers in his office complied with state ethics rules.
In the Matter of John B. And Model Rule 8. Thus, in reporting the conduct of a supervisor to a disciplinary authority, the lawyer has to take into account what information must be revealed to support the charge. If the information is confidential for purposes of Model Rule 1. To complicate matters, the standard of disclosure may vary from state to state. A recent ethics opinion in Ohio held that a lawyer had a duty to report any misconduct stemming from unprivileged information. By contrast, the broader scope of Model Rule 1.
This much is certain: Subordinate lawyers who are dragged into the fray when their bosses flout the ethics rules cannot assume their second-chair status excuses them from their professional obligations. The appellate court noted that lawyers may use lists of clients expected to leave a firm to help obtain financing for their new practice.
But who gets custody of the clients? There is no prohibition in the ABA Model Rules against a departing lawyer advising clients that he or she intends to leave the firm. The nature of the communication is the major concern. The communications should not urge the client to sever a relationship with the original firm or disparage that firm. The requirement under Rule 7. Ideally, a departing lawyer and the firm can agree on the content of a joint announcement. Whether the lawyer can take client lists, continuing legal education materials, practice forms or computer files may turn on principles of property and trade secret law.
Top 10 Ethics Traps
Communicating by E-Mail A law firm in Massachusetts maintained a Web site that contained a link allowing visitors to send e-mails directly to lawyers at the firm. But the site contained no warning or disclaimer regarding the confidentiality of the information sent.
So when a company—call it ABC Corp. Opinion May 23, First, because the firm failed to provide necessary disclaimers, the committee said the lawyer who received the e-mail must maintain the confidentiality of the information furnished by ABC Corp.
And second, the firm may not continue representing XYZ Corp. In this case, a marketing tool intended to help attract clients appears to have lost a firm two of them. The greatest of modern conveniences. You can write three while billing someone else. The bane of our existence.
1.12 Organization as a Client
Step away from your desk or ignore your BlackBerry for an hour, and 15 more have arrived—all demanding instant responses.
For further proof of this mixed blessing, consider these e-mail ethics traps waiting for lawyers and clients. Of course, most of us automatically label every e-mail we send that way, just to make sure. Even the order to the deli for five corned beef sandwiches with Russian dressing. Label the message itself.
Then a judge will know you actually thought about it. E-mails permit instantaneous communication. They can forward a message on to hundreds more through long strings that add but rarely subtract addressees. So share e-mails only with client representatives who need to know.
Watch where your privileged message is going, and make sure your clients do, too. E-mails accumulate by the millions. As a result, companies institute policies for discarding the damned things.
The consequences of post-threat destruction are severe indeed, for both client and lawyer. Marland dropped his suit after agreeing to accept a percentage of any fees Thelen Reid got from the California suit.
Rules of Professional Conduct: Rule Client-Lawyer Relationship
Thelen Reid filed its own action in U. District Court seeking to enjoin Marland from pursuing his action. In February, a district judge ruled that Thelen Reid must produce documents the firm had sought to protect on grounds that they related to its representation of the insurance department. District Judge Vaughn R. Trinity Health Systems Inc. Statewide Grievance Committee, A. Remember to initiate communications on six key occasions: The duty to communicate with clients is simple enough.
Martyn is a professor at the University of Toledo College of Law. Eke-Nweke drew up a lease for a building on Staten Island.
It had some problems—enough for the document to come under the scrutiny of a U. But contrary to New York requirements, Eke-Nweke never advised the client to seek independent counsel, nor was the lease written or explained in terms she could reasonably understand.
Chapter 1. Lawyer-Client Relationship
Weinstein in his Aug. First, the terms of the transaction must be fair and reasonable for the client; and the lawyer must explain them, in writing, in a way that is reasonably comprehensible to the client.
Third, the client must sign an informed consent to the transaction disclosing that the lawyer is representing the client in the deal.
Doing business with a client includes such things as loaning money a particularly bad ideaobtaining an ownership interest in a corporate client, joining in a business venture for a client, and receiving a security interest in client property to protect your fees.
In McMahon, the attorney should have provided the Rule 1. A lawyer may also be required by Model Rule 5. Also, making substantive changes to an existing fee arrangement with a client may cause it to be treated as a business transaction. In re Hefron, N. One final consideration is that many professional liability policies will not provide coverage if the lawyer has a financial interest in the client. Shely of the Shely Firm in Scottsdale, Ariz.
Lindvall and Patricia J. Under a joint defense agreement, they attended confidential meetings with other defendants in which evidence and strategies were discussed in detail. A few months later, Pfizer Corp. A defense motion to bar Kaye Scholer followed almost immediately. Kaye Scholer contended that it had dealt with the potential conflicts before taking on Pfizer, and that Lindvall and Clarke had even obtained a written waiver of conflicts from Ivax.