Previous
The Restatement addresses the basic requisites of the attorney-client relationship in § 28 as follows:
To the extent consistent with the lawyer’s other legal duties and subject to the other provisions of this Restatement, a lawyer must, in matters within the scope of the representation:
(1) proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation;
(2) act with reasonable competence and diligence;
(3) comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client; and
(4) fulfill valid contractual obligations to the client.
Where in the Model Rules is each of these duties addressed? What is the source of each of these obligations (contract, agency or fiduciary duty), and how does that source impact on the definition and scope of the duty? As we address each of these obligations individually throughout the semester, we will address these and other questions regarding each of these duties.
Some duties may arise even before representation is undertaken or even if no relationship ever materializes. Section 27 of the Restatement sets out the duties a lawyer owes to a prospective client. These duties are significantly less than the duties owed once a relationship ensues.
Note that a lawyer’s duties to his or her client may be limited by an agreement between the lawyer and the client, Restatement § 29A, 30. Pursuant to the Model Rules, a lawyer may limit the objectives of a representation if the client consents after consultation. M.R. 1.2(c).
Within the attorney-client relationship, the attorney and client may allocate decision-making authority by agreement. Restatement § 32. Absent such agreement, a lawyer shall abide by a client’s decisions regarding objectives and shall consult with the client regarding means. M.R. 1.2(a); see also Restatement §33, 34. The attorney has a duty to communicate with the client to the extent necessary to effectuate this decision-making authority. M.R. 1.4; Restatement § 31.
To a large extent, concepts of agency govern issues of decision-making and authority within the attorney-client relationship. Thus, courts generally look to agency concepts in resolving questions regarding the authority of the attorney to bind the client. See Rosenblum v. Jacks or Better of America, 745 S.W.2d 754, 760-61 (Mo. App. 1988). Because of the fiduciary nature of the relationship and the professional role of the attorney, however, these concepts are instructive, but are not conclusive, in determining these issues. See generally Lawyer’s Manual at 31:301-304. This is especially true where settlement of litigation is involved.
Generally, an attorney is expected to continue representation of a client until the matter for which the attorney has been retained has been completed. In some situations, either the attorney or the client will want to end the relationship prematurely. Model Rule 1.16 governs the termination of the attorney-client relationship. That Rule makes withdrawal mandatory in certain circumstances (see 1.16(a)) and permits withdrawal in others. (See 1.16(b)). Read Rule 1.16. Generally, the Restatement is in accord with the Rules. See Restatement § 44. Termination of the relationship ordinarily ends the attorney’s authority to act on behalf of the client. See Restatement § 43. With regard to withdrawal, see generally Lawyer’s Manual at 31:1001-1212.
Whenever an attorney withdraws from representation, the attorney has an obligation to take reasonable steps to protect the client’s interests. This may include giving reasonable notice of the intent to withdraw, surrendering property and papers of the client and refunding any unearned fees. See M.R. 1.116(d); Restatement § 45.
| Previous |
Next |