NOTES ON THE LAW: THE ATTORNEY/CLIENT RELATIONSHIP

The practice of law begins with a client. How should a lawyer decide whether to agree to represent someone? Many lawyers, inexperienced or otherwise, are tempted to take “whatever comes through the door”. To succumb to that temptation is a mistake.

Questions that should be asked before agreeing to represent someone include:

1. Is the prospective client competent to hire me?

2. Does the client’s case have merit?

3. Am I qualified to handle the case?

4. Do I currently have the time and resources needed to give the client the quality representation s/he deserves?

5. Do I have a conflict of interest?

Although attorneys are not physicians, we are expected to evaluate the competency of a client before entering into an agreement to represent them. The client must be able to understand the retainer agreement. This is particularly important with contingency fee agreements where a recovery (by agreement or judgment) must be obtained and the lawyer is to receive a percentage of that recovery, and with more complex agreements involving a hybrid of hourly rate compensation and contingency fees. All attorney fee agreements where fees are anticipated to be over $1,000.00 must be in writing. (Business & Professions Code §6148) The best practice is to always have a written attorney fee agreement with client(s).

To determine if a client’s case has merit, investigation outside of the initial interview may be necessary. In those cases, limited representation to conduct the investigation is appropriate. When an attorney determines that a client’s case is without merit, s/he should not take the case or should cease representation. Although there are over 200,000 lawyers actively licensed to practice law in California, the belief that some other lawyer will take a meritless case is not a valid reason for you to do so.

To answer the question of whether or not you have the knowledge and skill necessary to competently represent a client, evaluate previous cases in which you have successfully, or unsuccessfully, represented client(s) under similar circumstances. If you determine that you are inexperienced in the particular area of law involved in the case or, if litigation is required, that you have little or no trial experience, consider associating with a competent lawyer or acquiring the necessary learning and skill before performance is required. (See Rules of Professional Conduct 3-110) Under all circumstances a lawyer must be diligent in performing the work s/he has agreed to undertake.

Determining whether you have the time and resources necessary to assist a particular client will require the evaluation of factors such as the degree of difficulty of the work to be performed, scheduling conflicts and availability of the attorney, amount of support staff required and the experience and skill levels of the lawyer and staff who will handle the case. Taking a case when you do not have the time or resources to devote to it is a disservice to the client.

Before agreeing to represent a client, determine whether or not there is a conflict of interest. Conflicts arise under many circumstances, but a lawyer should not agree to represent a client with whom they have an “actual conflict” (See Rules of Professional Conduct 3-310). In circumstances where a “potential” conflict of interest may arise, representation may proceed with the informed written consent of the client. [This issue is complex and will be addressed in a later article.] In situations where a lawyer may be permitted to represent a client, they should consider their relationships with related parties before agreeing, or declining, to do so.

Lawyers have a duty of loyalty to their clients. (See Rules of Professional Conduct 3-310). Once a lawyer has agreed to represent a client, they must advise that client regarding their duties and responsibilities under the law. The law, however, is a minimum standard of conduct and lawyers have a responsibility to tell clients not only what they must do, but also what they should do in matters where the law is concerned. That responsibility comes with a duty to advise clients to show good judgment concerning lawsuits they file and claims they pursue.

In California, attorneys are: 1) counselors empowered to advise and assist with transactional work, and 2) attorneys authorized to represent clients in the Superior, Appellate and Supreme Court(s) of our state. They are also officers of the court, licensed by the State Bar and sworn in by the Supreme Court of California. They are expected to be zealous advocates for their clients, but this does not relieve them from the duties of civility, integrity and professionalism.