ATTORNEY-CLIENT RELATIONSHIPC.Authority Within The Relationship Primary roles of lawyer vis-à-vis client Adviser Advocate (rep. to court) Agent (rep. to others)

Sources of law governing agency function General law of agency (mostly common law) with specific application to legal services (Silver Street, p. 139)

Ethics rules: MRPC 1.2 (duties to the client!)

Problem pp. 138-9 On what theory might Carl be bound

by the settlement agreement? actual authority to sign on his

behalf? express authority? Do you have enough information to answer that?

Who has the burden of proof? implied authority? what facts would Maude rely on? How does Silver Street answer it? How does MRPC 1.2(a) bear on it?

Enforcing settlement c’t’dDid you have apparent authority? how does this differ from “actual”? Silver Street and n. 2 p. 142-3 – any basis for finding such authority in our problem?

n. 4 p. 143: is the Missouri case consistent with the general concept of “apparent authority”?

n. 5 p. 143: If Maude shows apparent authority and wins judgment against Carl, does that foreclose a malpractice action by him against you?

Enforcing settlement c’t’d Possible solutions for you? Put a clause in retainer agreement

expressly authorizing you to enter into any settlement of the claim which is “reasonable and fair to client.” Permissible? Under what conditions?

Insert a clause whereby client agrees not to settle the claim without your consent?

safety first: get clients’ signatures on any agreement before relying on it?

Authority c’t’d

When Carl insists that you depose Maude rather than using

interrogatories seek a change of venue subpoena Maude’s tax records

what are your obligations? MRPC 1.2(a)

suppose Carl doesn’t “grudgingly acquiesce”? What do you do?

D. THE TRUST ACCOUNT ABA Canons of Prof. Ethics, Canon 11 (Supp. p.

490) don’t take advantage of client’s confidence

for personal benefit report and account for any money or “trust

property” coming into your hands don’t “commingle” client’s funds with your

own Wilson, p. 145; ABA Standards for

sanctions, p. 146: knowing conversion = disbarment!

ABA Model Code DR 9-102, MRPC 1.15: “client trust account” requirement for funds do you need a separate account for each client?

Problem pp. 144-5 Check to you from client for

$1,500: what do you do with it? What is it for? To whom do the funds belong?

Next day obtain doctor’s reports (cost $550) and hospital records ($250): how do you pay for them? write checks on the trust account? write checks on your personal

account, then write a TA check to yourself as reimbursement?

Problem p. 144-5 c’t’d File suit for client against neighbor,

settled, you receive check for $150K made out to client and you – what do you do? To whom do the funds belong?

(contingent fee!) can you just deposit it in the TA? endorse it and give it to client for his

endorsement? What risk? Deposit it, then write TA checks to self

and client for respective shares? What risk? If settlement check bounces, but there are

sufficient other funds in TA, any problem?

Problem p. 144-5 c’t’d

Sandra is executor of uncle’s estate, receives his collections of baseball cards and coins, gives them to you for safekeeping – what do you do with them? (Grubb, p. 157; MRPC 1.15(a))

You ask for $500 check for fees and expenses; when you get it, you have already earned $300 in fees and expended $250 – what do you do with the check?

Problem pp. 144-5 c’t’d

Interest-bearing Trust Account (ITA)– what happens to the interest? if it is a separate account for a single

client? When would you be required to do this?

if it is a multi-client account? Brown, p. 150 – State IOLTA plan

requiring interest to be paid into a bar-controlled fund for legal services purposes Is there a taking as defined in fed. Const.? If so, is any compensation required?