Forming the Relationship
Discretion in choosing clients
For the most part, lawyers have large amounts of discretion when choosing a client. There are several factors to consider as well:
- When to represent an unpopular client (Could hurt reputation, but that shouldn’t be a factor in declining representation)
- How much Pro Bono work an attorney should conduct (About 50 a year)
- The experience in a particular legal field (Need to be competent to represent)
- General considerations (e.g. fees)
Client’s also have many considerations when it comes to retaining an attorney. Usually, an attorney will conduct an initial visit with the client; at which point, the attorney will hear the client’s story, determine the likelihood of success, ensure that there are no conflict of interests with other clients, and provide the potential client with a fee schedule and confidentiality requirements. At this point, the client may determine that they have no case, determine that it would be too expensive to litigate the case, or want to go to another lawyer because personalities do not match.
Offering Advice
Even if the attorney does not sign an agreement with a client, the attorney may be legally obligated to provide professional assistance if they give some legal advice. Thus, an attorney should be careful in providing casual legal advice because it might end up harming them in the end.
Togstad v. Vesely, Otto, Miller & Keefe
291 N.W.2d 686 (Minn. 1980).
Question
Was there an attorney-client relationship.
Rule
If a potential comes to the attorney for advice and the attorney provides some advice upon which the client relies, a relationship between the two is formed.
Holding
There was an attorney-client relationship. Additionally, the other elements of legal malpractice are satisfied. Thus, the lower court’s decision is affirmed.
Facts
Mr. Togstad had headaches and the doctors performed a procedure. One of the risks of the procedure was paralysis. Mr. Togstad became paralyzed but only because there was improper care in ensuring his health and safety was monitored.
Mrs. Togstad went to Miller’s office to see whether she had a case. After providing the facts and Miller taking notes, Miller told Mrs. Togstad that he did not think she had a case, but that he would confirm with another attorney (and would let her know if he changed his mind). Miller talked to the partner and determined that there was not a case. As such, he never contacted Mrs. Togstad about that discovery.
Relying on the silence, believing that she did not have a case, Mrs. Togstad did not file a lawsuit. Later, she went to another attorney who did believe she had a case, but by that time the statute of limitations had expired. So, she sued Miller for legal malpractice. At trial, it was found that there was an attorney-client relationship, of which the attorney acted negligently, that the plaintiff was hurt from that negligence, and that they would have won their medical malpractice case (had it gone to trial).
Analysis
This case shows just how careful an attorney needs to be when talking with a potential client. In this case, there was a client-relationship because she came for advice (was there a case) and he provided advice (I don’t think there is a case). Thus, there was a relationship. He was negligent in not conducting any additional research into her fact pattern, checking medical records, etc.
Additional Notes
6.1 – Pro Bono Representation – Lawyers should aspire to render at least 50 hours of service each year.
6.2 – If a tribunal asks a lawyer to represent someone, you can’t decline except for good cause.
Competence
1.1 – Competence Rule – A lawyer is required to provide competent representation for the client. However, what is considered competent is really up to the court. Circular
Essentially, do your research, and recommend someone else if you feel like you are over your head.
Strickland v. Washington
Washington admitted to murder against his counsel’s advice. During a sentencing hearing about whether there should be a death penalty or life in prison, the attorney elected not to find character witnesses, relying on knowing the judge who gives better sentences for those who confess. Rather than life in prison, he was sentenced to death.
On appeal, Washington found 14 individuals who would vouch for him. The issue with this is that the prosecution would have countered this evidence.
Ultimately, it is hard to attack a lawyer for ineffective assistance of counsel when they make a judgment call. The majority in this opinion believed that the attorney was making a judgment call, rather than risk the attack.
There is a two-prong test:
- Serious error from the lawyers
- A showing of prejudice (you lost the case because of it)
Diligence
1.3 – Lawyer must be diligent with a client representation
Don’t miss your deadlines.
Communication
1.4 – Communication. Inform the client of any condition or circumstance with the case. Consult about the means the client’s objectives are to be accomplished.
Candor
2.1 – When representing a client, the lawyer should exercise professional judgment and provide candid advice. The law and other factors (social, political, moral, etc.) may influence what advice is provided.
Scope of Representation
1.2 – A lawyer should tell the client exactly what work the lawyer is expected to conduct.
Capacity
1.14 – Client capacity is diminished, the lawyer should do their best to maintain a reasonable attorney-client relationship with the client. This often occurs when representing the elderly. In this instance, the lawyer may take reasonable actions to protect the client.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
