Professional Responsibility

Ch. 2 basic elements of law

practice
Allocating Decision-making Between
Lawyer & Client
Prof. George W. Conk
Senior Fellow, Stein Center for Law &
Ethics, Fordham Law School
Room 8-122
gconk@law.fordham.edu

Ch. 2 - part.2 Basic elements of

law practice

Allocating decisionmaking between lawyer

and client
Master
Mouthpiece
Independent agent
Ch. 2 Ineffective assistance and
the lawyer client relationship

RPC 1.2 Scope of representation

Abide by clients decisions re

objectives

Consult as to means

Implied authority as to means

Settlement, plea, waive jury,

testify belong to client
Ch. 2 Ineffective assistance and
the lawyer client relationship

RPC 1.2 Scope of representation

Representation is not
endorsement of clients acts or
views

Reasonable limits on scope

permitted with informed consent

May not counsel criminal or

fraudulent conduct

Ch. 2 Ineffective assistance and

the lawyer client relationship

Q. 2-38, p. 143 Strategy and tactics

A) Lawyer need not follow clients

instructions
B) Lawyer must follow clients
instructions
C) Rules but not 6th Amendment
require lawyer to make the
arguments
D) 6th Amendment but not Rules
require lawyer to make the argument
Ch. 2 Ineffective assistance and
the lawyer client relationship

Authority Reserved to Lawyer

Lawyer decides after consultation:

what witnesses to call

whether and how to crossexamine

what jurors to accept or strike

what trial motions to make

all other strategic and tactical

decisions
Source: ABA Standards Relating to the
Administration of Criminal Justice
4-5.2(b) (2d ed.1982)
Ch. 2 Ineffective assistance and
the lawyer client relationship

Jones v. Barnes (U.S. 1983)

The Sixth Amendment provides

that "[in] all criminal
prosecutions, the accused shall
enjoy the right . . . to have the
Assistance of Counsel for his
defence"
Ch. 2 Ineffective assistance and
the lawyer client relationship

Jones v. Barnes (U.S. 1983) p. 135

In Anders, this Court held that an

appointed attorney must advocate
his client's cause vigorously and may
not withdraw from a nonfrivolous
appeal.
The Court of Appeals majority held
that, since Anders bars counsel from
abandoning a nonfrivolous appeal, it
also bars counsel from abandoning a
nonfrivolous issue on appeal.
Ch. 2 Ineffective assistance and
the lawyer client relationship

U.S. v. Cronic (U.S. 1984)

The focus is on the adversarial

process, not on the accused's
relationship with his lawyer

If counsel is a reasonably
effective advocate, he meets
constitutional standards
irrespective of his client's
evaluation of his performance.
Ch. 2 Ineffective assistance and
the lawyer client relationship

Limiting the scope of

representation
Who decides? And how?

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Q. 2-39p 148 clients

instructions to limit discovery,
etc.

A) Yes - Lawyer must follow

instructions
B) Yes - Lawyer and client may agree
to limit scope
C) No lawyers may never limit
scope of representation
D) No lawyers can limit scope but
not in these circumstances
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Q. 2-40, p. 150
Is lawyer subject to discipline for
refusal to accept the settlement offer?

A) Yes because fee increased on

appeal
B) Yes because client directed he
accept settlement
C) No whether to appeal is a
tactical matter
D) No because prediction on merits
of appeal requires exercise of
independent judgment
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Q. 2-41, p. 151 Malpractice or

disciplinary breach for failure to follow
instructions

A) Rules and malpractice require

lawyer ignore instructions of client
B) Rules are unclear but malpractice
law requires compliance
C) Rules and malpractice law require
compliance
D) Rules are unclear but malpractice
law requires lawyer to follow
instructions
Ch. 2 Ineffective assistance and
the lawyer client relationship

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Q. 2-42, p. 156 client elects death

T Lawyer must request death

sentence

F Lawyer need not acquiesce in

clients request

Ch. 2 Ineffective assistance and

the lawyer client relationship

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State v. John Martini (NJ 1996)

O'HERN, J.
A capital defendant may not waive a
sentencing hearing, may not waive the
presentation of mitigating evidence, and may
not waive an appeal.
Given the importance of post-conviction relief
to ensuring the reliability and integrity of
death sentences imposed in New Jersey, a
capital defendant may not waive postconviction relief, either.
.
Ch. 2 - part.2 Basic elements of
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Q.2-43, p. 160 Did attorney properly

counsel client about consequences of
violating Sunday blue law?

A) Yes if information would

encourage law violation
B) Yes if lawyer failed to discourage
law breaking
C) No if lawyer merely gave advice
re likely result of law breaking
D) No its ok to discuss how to
avoid detection
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People v. Chappell (CO 1996)

My advice as a lawyer was to

stay and as a mother to run/

Why was Chappell disbarred?

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Q. 2-44, p. 164 Is it proper for a lawyer

to advise a client to pay a fatally flawed
claim?

A) Yes if landlord did not object to

the advice
B) Yes - because non-legal
considerations may be appropriate
C) No engagement letter did not
include such advice
D)No lawyer must zealously protect
clients legal rights
Ch. 2 Ineffective assistance and
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Board of PR of Tennessee (1996) p.

165

How does attorney urging her

client to speak to here parents
(who oppose the abortion
choice) present a conflict of
interest?
Doesnt RPC 2.1 mandate
independent professional judgment
and authorize considerations such
as moral, economic, and political
factorsrelevant to the clients
situation
Ch. 2 - part.2 Basic elements of
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Q. 2-45, 46 p. 166.

May a lawyer adjourn a case for

his own convenience without the
clients consent?

Must a lawyer refuse an

adjournment request because
his client says to give no
Ch. 2 Ineffective assistance and
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Q. 2-47 p. 169
Lawyer represents tobacco company
defendant

May a lawyer represent a morally

reprehensible client?

Ch. 2 Ineffective assistance and

the lawyer client relationship

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Q. 2-48, p. 170
Client believes landlord is shooting
gamma rays into her apartment
How do you handle a client
who is becoming demented
or psychotic?

Ch. 2 - part.2 Basic elements of

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Q. 2-48 Gamma rays!

What may lawyer do?

(A) follow Tenants instructions.
(B) seek appointment of a
guardian.
(C) consult with clients
daughter.
(D) ask court permission to
withdraw from representing
Tenant.
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Rule 1.14 Client With Diminished

Capacity

(a) When a client's capacity to make

adequately considered decisions in
connection with a representation is
diminished, whether because of minority,
mental impairment or for some other
reason, the lawyer shall, as far as
reasonably possible, maintain a normal
client-lawyer relationship with the client.
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RPC 1.14 (b) subject to RPC 1.6

(b) When the lawyer reasonably believes that

the client has diminished capacity, is at risk of
substantial physical, financial or other
harm unless action is taken and cannot
adequately act in the client's own interest, the
lawyer may take reasonably necessary
protective action, including
Ch. 2 - part.2 Basic elements of
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RPC 1.14 (b) subject to RPC 1.6

consulting with individuals or entities that

have the ability to take action to protect the
client and, in appropriate cases, seeking the
appointment of a guardian ad litem,
conservator or guardian.
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Representing children RPC 1.14

In matters involving a minor, whether the

lawyer should look to the parents as natural
guardians may depend on the type of
proceeding or matter in which the lawyer is
representing the minor.
If the lawyer represents the guardian as
distinct from the ward, and is aware that the
guardian is acting adversely to the ward's
interest, the lawyer may have an obligation to
prevent or rectify the guardian's misconduct.
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Q. 2-49

Is a lawyer a hired gun?

A, Yes

B. No

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DEFENSE AND SETTLEMENT (INCLUDED IN

LIMIT OF LIABILITY)

Our duty to defend any claim or

pay any amount as damages or
claim expenses will cease when
our limit of liability has been
exhausted.

Upon exhaustion of the limits of

liability, we will tender control of
the defense to you. You agree to
accept this tender of defense.
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Defense attorneys

You are responsible for any fees

charged by a lawyer defending
you without our written consent.

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DEFENSE AND SETTLEMENT (INCLUDED IN

LIMIT OF LIABILITY)

If the claim is excluded under

this policy, we will have no duty
to defend it.

Payment of claim expenses will

reduce the amounts available to
pay damages.

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