An attorney-client relationship is formed when a lawyer agrees to provide legal assistance to someone seeking the lawyer’s services. The scope of the representation depends on the terms of the agreement. The lawyer may agree to undertake a specific matter for the client, in which case the relationship terminates once the matter is resolved. Alternatively, the lawyer may agree to represent someone for all matters of legal consequence which may arise, which creates an open-ended and ongoing attorney-client relationship.
When the two parties agree to an ongoing relationship, the client will normally pay the lawyer a retainer fee to secure the lawyer’s representation. However, an attorney-client relationship may be formed even without any fee changing hands and without a signed agreement. If a lawyer gives legal advice to another seeking such advice, and the lawyer can reasonably foresee that the prospective client will rely on that advice, or the client reasonably believes he was being represented by the lawyer, an attorney-client relationship is formed.[2]
Merely arranging to consult with a lawyer, however, without the belief or expectation of legal advice or representation, does not establish an attorney-client relationship, unless the lawyer agrees to take on legal representation for a specific matter.
While one who consults with a lawyer does not necessarily become a client, the lawyer nevertheless assumes some duties towards the individual immediately as a prospective client. Specifically, any information the prospective client reveals to the lawyer pertaining to his legal circumstances cannot be revealed and may not be used to the disadvantage of the prospective client at a later time.[3]
A corporation is a recognized legal entity with interests separate and distinct from the individuals who operate on behalf of the corporation. A such, a lawyer employed or retained by a corporation, or any legally recognized organization, represents the organization, and owes duties to the entity, not to its board members, officers, and shareholders.[4]
Since a corporation cannot act except through its officers, directors, shareholders and other employees, and, at the same time, the interests of the corporation may be at odds with the interests of any of these people, a lawyer who represents a corporation may encounter specific ethical questions regarding how his duty to the corporation should be carried out.
One such question arises if a lawyer for the organization knows that an official of the organization is violating a legal obligation to the corporation, or violating the law on behalf of the corporation, in a way which is likely to cause substantial harm to the corporation. In such a case, the lawyer generally acts in the best interests of the corporation by referring the matter to higher authority in the organization.[5]
Should the lawyer inform the appropriate authority, and the authority fails to address the violation, the lawyer’s duty nevertheless obligates him to protect the corporation’s interests if the violation will result in substantial harm to the corporation. So, under such circumstances, the lawyer may sometimes reveal confidential information about the violation if doing so protects the legal interests of the corporation, such as by preventing the violation from opening the corporation to civil or criminal liability.[6]
Note that when the interest of the corporation differs from that of its officers, board members, shareholders or other constituents, the lawyer has a duty to explain to these people that she does not represent them individually but, rather, represents the organization as a whole. The lawyer should inform them that any attorney client-privilege which exists between the constituent and the lawyer may be waived by the law firm and should advise them that they may wish to obtain independent legal representation.
Duties to the Client
There are many aspects of the attorney-client relationship which are governed by the rules of professional responsibility. The two most basic duties are the duties of competent representation and diligent advocacy.
A lawyer is required to provide competent representation for a client. To meet this duty, a lawyer must employ the legal knowledge, skill, thoroughness and preparation necessary for representation. The competence requirement does not mean that a lawyer must have special training or prior experience in a specific area of law before agreeing to represent a client in a matter pertaining to that area of law.[8] Still, the lawyer should only undertake the representation if she can acquire the knowledge and preparation needed for adequate representation through study or association with another lawyer more familiar with the area of law.[9]
Some jurisdictions have more specific delineations of what constitutes competent representation. This may include requirements such as informing the client of areas of law beyond the lawyer’s competence, attending to the details and schedules needed to assure the matter is handled without harm to the client’s interests, gathering sufficient facts regarding the client’s problem, determining the applicable law and developing a strategy for solving the client’s legal problems.[10]
A lawyer must also act with reasonable diligence and promptness. Reasonable diligence is understood to mean acting with commitment and dedication to further the interests of the client, and to proceed with zeal in advocacy on the client’s behalf.[11]
Still, diligence and zeal do not require the lawyer to press for every possible advantage for their client, nor does it mean that a lawyer must employ offensive tactics, or refrain from treating others involved in the legal process with courtesy and respect.[12]
Diligent representation may involve balancing conflicts between a lawyer’s responsibilities to clients and to the legal system, but the lawyer must stay within the bounds of the law and his or her professional responsibilities. So, if advancing a client’s interest would entail acting dishonestly, committing fraud or otherwise violating legal ethics, the lawyer must refuse the client’s request to act in such a manner.[13]
Decision-Making in Legal Representation
A lawyer serves as an agent of her client. Thus, when the lawyer is acting on the client’s behalf, the client is bound by the lawyer’s decisions, actions or failures to act. As such, it is important for there to be a clear understanding between the lawyer and the client regarding which decisions are reserved for the client, and in which areas the lawyer has the discretion to act on the client’s behalf.
According to the parameters outlined in the Model Rules of Professional Conduct, the client is responsible for making determinations regarding the objectives of the legal representation. The client also has the final say in how the matter is resolved. So, a lawyer must abide by the client’s decision about whether to settle a matter, and on what terms. In a criminal case, the client ultimately decides how to plea in response to a criminal charge, whether to waive a jury trial and whether the client will testify. All of these decisions should be done in consultation with the lawyer, but the client has the final say.[14]
The client’s wishes govern the conduct of a matter to the extent they are permissible under the rules of professional conduct and the general norms of professional courtesy.
The lawyer, by contrast, is generally responsible for deciding on the means to achieve the client’s objectives. As such, elements of legal strategy such as decisions regarding the choice of motions, the scope of discovery, which witnesses to call and the substance of direct and cross-examination are within the purview of the lawyer.
At the same time, the lawyer has a duty to consult with the client about the decisions and strategies and to give adequate information about the risks involved and reasonable available alternative strategies and decisions.[15]
However, where an immediate decision must be made, such as during a trial, the situation may require a lawyer to act without prior consultation with the client. In those cases, the lawyer must inform the client of the actions taken on the client’s behalf and explain the reasons for them.[16]
In general, the lawyer should keep the client reasonably informed about the ongoing status of the matter, and promptly comply with requests for information, as long as they are reasonable. Of course, they also may agree to other divisions of decision-making authorities.[17]
The lawyer is also expected to consult with the client with respect to limitations on what the lawyer can do if the lawyer knows that the client expects him to act in a manner which is contrary to law or the rules of professional conduct.[18]
Confidentiality
Lawyers owe the duty of confidentiality to their clients. Unless a lawyer receives consent, the lawyer may not reveal information relating to the representation of the client.[19] The duty of confidentiality serves to encourage clients to tell their lawyers everything that may be important to the legal matter so that the lawyer can provide the best legal representation.
Note that the confidentiality rule applies not only to matters communicated in confidence by the client, but to all information relating to the representation. It is not limited to information offered by the client, but may be information relating to the representation obtained from any source.[20]
The duty not to reveal information includes any information that could reasonably lead to the discovery of such information, concerning the identity of a client, or the legal matter at the heart of the representation.[21]
In addition to prohibiting disclosure of confidential information, rules of professional conduct also bar lawyers from using confidential information to the disadvantage of the client, unless the client gives consent.[22] This duty extends to former clients, whom the lawyer no longer represents.[23]
The rule against revealing confidential information is not absolute, though. Legal ethics rules recognize circumstances in which a lawyer may reveal confidential information, even without the consent of the client, in cases of compelling and legitimate need.[24] These circumstances include when revealing the information is necessary to prevent death or substantial bodily harm and to prevent the client from committing a crime or perpetrating a fraud through the use of the lawyer’s services. The lawyer may also divulge confidential information for the purposes of obtaining legal advice about whether the lawyer’s conduct complies with relevant ethical rules, to defend against claims made against him by the client or to comply with a court order.[25]
Attorney-Client Privilege
While the duty of confidentiality prohibits a lawyer from disclosing information relating to a representation as a matter of legal ethics, the attorney-client privilege protects information communicated to an attorney as a matter of law. Private communications with an attorney are privileged and may not be compelled. Lawyers with information disclosed to them as part of a confidential communication with a client may not testify regarding the content of that communication unless the client waives the privilege.
The purpose of the privilege is to encourage free and open exchange of information between attorney and client, without concern that what is said between them can be used as evidence against the client.[26]
Unlike the duty of confidentiality, which covers all information relating to the representation from whatever source, the attorney-client privilege only applies to information privately communicated by the client to his lawyer. Specifically, the privilege protects communications between a lawyer and a client, communicated outside of the presence of third parties, which are made for the purpose of obtaining legal assistance or advice.[27] These communications need not be oral, as privilege covers written documentation such as letters, emails, texts or any other mode of communication made in confidence to an attorney.[28]
The presence of third parties breaks the privilege, though there is an exception when the third party shares a common legal interest with the client, or if the parties have signed a joint defense agreement.[29] Likewise, if the client subsequently reveals the content of the confidential communication to a third party, or makes it public, he is considered to have waived the privilege, and testimony regarding that communication may be compelled through discovery or testimony.[30]
However, the presence of people who are essential to supporting the attorney-client relationship, such as paralegals or administrative assistants, does not break the privilege.[31] Similarly, the presence of those who serve to facilitate communication, such as a translator for a foreign language speaker, or a psychologist who provides support to the client, does not break privilege.[32]
Note that while confidential communications are privileged, the privilege does not extend to the underlying facts discussed in the communication.[33] For example, when a business turns over its financial records to an attorney, any conversation regarding the records is privileged, but the records themselves are not privileged, and can be compelled in the discovery process.[34]
Finally, if the purpose of communicating with a lawyer is not to obtain legal advice, the communication is not protected. Sometimes, such as when it comes to an in-house attorney for an organization who deals with both legal and business matters often in the same communication, it can be difficult to determine whether a particular conversation is privileged.[35] Courts have looked to factors such as the primary purpose of the communication, or whether the attorney was acting in his capacity as a lawyer, to determine which communications are privileged in such cases.[36]
There is an exception for communications that serve to further a potential or ongoing crime or fraud. For example, if a client seeks a lawyer’s assistance in drafting documents which are intended to defraud the government by supplying false information, any communications regarding these documents would not be privileged.[37] Note that the crime-fraud exception only applies to ongoing or contemplated crimes or fraud. If someone seeks a lawyer’s advice regarding past legal misconduct, such communications would be privileged.
The Work-Product Doctrine
Aside from confidential attorney-client communication, the law also protects materials prepared by a lawyer to assist her client for upcoming litigation. This is known as the work-product doctrine, and it establishes that an adverse party may not compel the disclosure of any written material or documentation, in whatever form, prepared by a lawyer in anticipation of future litigation.[39] While such documentation may contain relevant information, the purpose of the work-product rule is to prevent a lawyer from potentially benefiting from the work of an adversary, thus hindering the legal work.[40]
The work-product rule is subject to limitation. If the adverse party can demonstrate a substantial need in order to prepare its case and that it cannot obtain the material by other means without undue hardship, then the adverse party may obtain his adverse lawyer’s work product through discovery.[41]
To illustrate, consider the case of a taxi driver who hit and killed a pedestrian. The driver subsequently gave a statement to the taxi company’s safety department, including legal counsel, but could not be interviewed by plaintiff’s counsel. The court held that while this factual statement was considered attorney work-product, the estate of the pedestrian who was suing the company could compel disclosure of the statement. The reasoning was that the statement contained essential factual information about the accident, and since the driver was the only surviving witness, there would be no reasonable alternative means of obtaining the information.[42]
This substantial need exception does not extend to all work products, however. Documentation by an adverse lawyer which forms the core of his legal representation, including the mental impressions, conclusions, opinions, or legal theories concerning the litigation, is generally afforded near-absolute protection, and is not subject to a claim of substantial need.
