proRo class 5

see rule 1.2(a)

client decides if he wants to
requests to opposing counsel, and if request needs to be made to court,
client is rarely consulted in that kind of situation.
but in many situations, where it's less important than deciding to file
or continue, and instead the rule and comment give very little
guidance about which decisions are exclusively reserved for clients.

what issues are specifically off-limits for attorneys alone.
in civil cases, the client must decide whether or not to settle.
the client can delegate that authority, such as what amount to settle for,
but failing to transmit an offer of settlement to your client
(moors v. lowry for ex, where att was liable for $1M to client)
has repercussions.

criminal cases - the client must decide whether to plead, whether to
testify and whether to waive trial.

why doesn't the rule give more guidance?

this is a context sensitive matter that depends on many factors, such
as the type of lawyer you are...

ex. p 73 "i don't bargain"
why can't the lawyer find someone else for the client?
with an immediate decision that must be made, you can't bring in
new counsel in such a short period of time and prepare them in a way
such that they could really provide an adequate replacement.
events can transpire which can change a situation, and as things change
the lawyer must change as well, otherwise he's not representing the
client adequately.

you will begin to recognize as we move through materials that the
rules overlay. from one situation to another, there will be multiple
rules that weave together.

rule 1. 4 - duty of communication.
you must inform and consult client, keep the client informed about
his case, and comply with requests for information, and to consult
the client about any limitation on the lawyer's conduct and limits
imposed by the other rules.

notice that though there are explicit rules of honesty to the court,
to other parties (4.1), there's no explicit duty to not lie to your client...
probably most people assume that people will be honest with their
clients because of fiduciary duty

rule 8.4 (c) -- all misconduct on part of a lawyer should draw you back to this

see comment 2 to rule 1.4.
if these rules require prompt consultation with the client?

jones v. barnes.
issue: is it a 5th or 6th amendment violation for the lawyer to not raise every
issue on appeal that the client wants to raise?
the court says no.
is it a professional violation?
the court says no, the professional responsibility of the attorney even is such
that he should use his skills to protect the client.

why should a case be protected if there's a number of non-frivolous mistakes
made in a case? why don't we require all attornies to provide clear reasons of
why they do and don't make certain decisions?
one answer is because of the work and paper involved.

the dissent's argument: the lawyer is the client's representative voice,
and is responsible for assisting the client and preserving the autonomy and
dignity of the client.

what's the difference between civil and criminal applications in this case?

as an ethical matter, all that jones decides is that the decisions a lawyer makes
for the client is not a constitutional violation. but it doesnt' tell us anything about
the possibility of ethics violation.

rule 1.16 - withdrawal
rule 1.16(a) deals with situations where the lawyer is required to withdraw:
- att is phys/mental impaired
- att is fired (and cli has pretty much unlimited right)
rule 1.16(b) deals with permissive withdrawal, which is very broad.
rule 1.16(c) deals with what you must do after withdrawal, such as return
documents, refund fees,
rule doesn't give specific timelines for when things must be done but instead
just makes it a "reasonable" time

rule 4.2 - no contact rule
see p. 90-92
if cli A contacts other lawyer about possibility of changing lawyers, that's OK.
if an att doesnt' know whether a cli is represented, the att may make contact,
     but the att has to end all conversation as soon as s/he knows the cli is represented:
     actual knowledge
the rule applies to atts making contact with cli, not to 3d parties making contact
     to cli (so long as 3d party isn't agent of the att)
the rule only prohibits communication in regards to the matter itself,
     so att can talk to another cli about other matters

neisig v. team I
former employees are fair game so long as you're trying to compel him to
disclose something that's covered by rule 1.6.

next class:
hammad, the problem on 4.3 and interviewing suspects without counsel