Ethics Opinion Whether a Nonlawyer Union Employee May Supervise a Union Attorney
The firm became a partnership in and a limited liability company in Our firm is engaged daily in litigation in state and federal courts in Wyoming, where we Our commitment to the legal profession and to our communities any kind to our firm will not create an attorney-client relationship nor will it impose any. National Association of Criminal Defense Lawyers Survey: --Respondent to NACDL survey regarding attorney-client privilege NACDL is already active in reaching out to the law enforcement community, other bar associations, NACDL—as well as the Association of Corporate Counsel—asked members to complete. of the federal common law on attorney-client privilege. See . should not apply the corporate attorney-client privilege to communications the community has determined should be "sedulously fostered"; and (4) the injury to the relationship.
For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public.
EC A lawyer occupying a judicial, legislative, or public executive or administrative position who has the right to practice law concurrently may allow his or her name to remain in the name of the firm if the lawyer actively continues to practice law as a member thereof. If the lawyer does not have the right to practice law concurrently, the lawyer's name should be removed from the firm name, and the lawyer should not be identified as a past or present member of the firm; and the lawyer should not hold himself or herself out as being a practicing lawyer.
EC In order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status. A lawyer should not hold himself or herself out as being a partner or associate of a law firm if not one in fact, and thus should not hold himself or herself out as being a partner or associate if the lawyer only shares offices with another lawyer.
EC The following, if used in public communications or communications to a prospective client, are likely to be false, deceptive or misleading: EC The legal profession has developed lawyer referral systems designed to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their particular problems. Use of a lawyer referral system enables an individual to avoid an uninformed selection of a lawyer because such a system makes possible the employment of competent lawyers who have indicated an interest in the subject matter involved.
Lawyers should support the principle of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel. EC Persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in appropriate activities designed to achieve that objective.
Financial Ability to Employ Counsel: Persons Able to Pay Reasonable Fees EC The determination of a proper fee requires consideration of the interests of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter non-lawyers from using the legal system to protect their rights and to minimize and resolve disputes.
Furthermore, an excessive charge abuses the professional relationship between lawyer and client.
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- FAQ - Privilege and Confidentiality for Lawyers in Private Practice
EC The determination of the reasonableness of a fee requires consideration of all relevant circumstances, including those stated in the Disciplinary Rules.
The fees of a lawyer will vary according to many factors, including the time required, the lawyer's experience, ability, and reputation, the nature of the employment, the responsibility involved and the results obtained. It is a commendable and long-standing tradition of the bar that special consideration is given in the fixing of any fee for services rendered another lawyer or a member of the lawyer's immediate family.
EC As soon as feasible after a lawyer has been employed, it is desirable that a clear agreement be reached with the client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client.
It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly when it is contingent. A lawyer should be mindful that many persons who desire to employ a lawyer may have had little or no experience with fee charges of lawyers, and for this reason lawyers should explain fully to such persons the reasons for the particular fee arrangement proposed.
EC Contingent fee arrangements in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that 1 they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute a claim, and 2 a successful prosecution of the claim produces a fund out of which the fee can be paid.
Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement.
Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations matters are rarely justified. In administrative agency proceedings, contingent fee contracts should be governed by the same considerations as in other civil cases.
Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a fund out of which the fee can be paid. EC A lawyer should not accept compensation or anything of value incident to the lawyer's employment or services from one other than the client without the knowledge and consent of the client after full disclosure.
EC Without the consent of the client, a lawyer should not associate in a particular matter another lawyer outside the lawyer's firm. A fee may properly be divided between lawyers properly associated if the division is in proportion to the services performed by each lawyer or, by a writing given to the client, each lawyer assumes joint responsibility for the representation and if the total fee is reasonable.
EC A lawyer should be zealous in efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. A lawyer should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.
Canadian Bar Association - FAQ - Privilege and Confidentiality for Lawyers in Private Practice
Persons Unable to Pay Reasonable Fees EC A person whose financial ability is not sufficient to permit payment of any fee cannot obtain legal services, other than in cases where a contingent fee is appropriate, unless the services are otherwise provided. Even a person of means may be unable to pay a reasonable fee, which is large because of the complexity, novelty, or difficulty of the problem or similar factors. EC A lawyer has an obligation to render public interest and pro bono legal service.
Each lawyer should aspire to provide at least 20 hours of pro bono services annually by providing legal services at no fee and without expectation of fee to: Each lawyer also should provide financial support for such organizations to assist in providing legal services to persons of limited financial means.
In addition to meeting the aspirational goals set forth above, a lawyer also should render public interest and pro bono legal service: Acceptance and Retention of Employment EC A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of a fair share of tendered employment which may be unattractive both to the lawyer and the bar generally.
EC History is replete with instances of distinguished sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. EC The personal preference of a lawyer to avoid adversary alignment against judges, other lawyers, public officials or influential members of the community does not justify rejection of tendered employment.
EC When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, the lawyer should not seek to be excused from undertaking the representation except for compelling reasons.
Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. EC Employment should not be accepted by a lawyer who is unable to render competent service or who knows or it is obvious that the person seeking to employ the lawyer desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another.
Likewise, a lawyer should decline employment if the intensity of personal feelings, as distinguished from a community attitude, may impair effective representation of a prospective client. If a lawyer knows that a client has previously obtained counsel, the lawyer should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment.
EC Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent the client by advising whether to take an appeal and, if the appeal is prosecuted, by representing the client through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.
EC A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances and, in a matter pending before a tribunalthe lawyer must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client as a result of the withdrawal.
Even when withdrawal is justifiable, a lawyer should protect the welfare of the client by giving due notice of the withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm.
Further, the lawyer should refund to the client any compensation not earned during the employment. Physical evidence of a crime is not protected by solicitor-client privilege because it is not an oral or written communication, it is physical evidence.
Coming into possession of physical evidence of a crime is fraught with legal and ethical dangers for you. You should seek advice from your Law Society and possibly from counsel. In the leading case on this issue, the lawyer was charged with obstruction of justice: There must be a legitimate reason to take the item.
Possession and retention are only justified where reasonably necessary for the purposes of representation: Counsel cannot examine or test the item in a manner that alters or destroys its material characteristics. Counsel must retain the item only for the time reasonably necessary to complete the examination or testing. Counsel who removes incriminating physical evidence from its original location risks losing the protection of legal professional privilege.
This loss of privilege would include the facts surrounding the item's location and condition; counsel may even be required to be a witness. Murray, Justice Gravely of the Ontario Superior Court outlined three "legally justifiable options" once counsel realizes that they are improperly in possession of incriminating physical evidence: Immediately turn over the evidence to the prosecution, either directly or anonymously.
Deposit it with the trial judge.
Options two and three are only available to counsel when the client has already been charged with an offence and proceedings are underway. If you come into possession of physical evidence of a crime prior to proceedings being commenced against your client in relation to the evidence, the best course of action is for you to retain independent counsel and instruct that counsel to turn the evidence over to the Crown.
The communications between you and the independent counsel will be protected by solicitor-client privilege. This procedure will also enable the communications between your client and you regarding the evidence to remain privileged and may help to avoid the scenario where you could be called as a witness against your client. Can I disclose privileged information to the successor in title of a corporate client? Does it matter whether the company was taken over through a share sale or asset purchase?
The share sale is the easier case as the privilege remains with the corporation when it is sold. While control of the corporation may change, the corporation remains the client.
End-of-life notice: American Legal Ethics Library
Where assets are purchased, the issue turns on whether the purchaser is the successor-in-title. It has long been held that solicitor-client privilege flows through to successors-in-title. Thus, the privilege of the original owner continues to a successor in title.
In other words, solicitor-client privilege that is "owned" by a business owner passes to a successor-in-title to the business, and can be asserted and maintained by the subsequent owner. Goodman Estate,  2 S. Sterling Offices et al. My client has gone into bankruptcy? What information may I share with the trustees in bankruptcy? When you are acting on behalf of a client in bankruptcy, you still owe a duty of confidentiality to that client.
As a general rule, solicitor-client privilege is maintained during bankruptcy proceedings and you cannot divulge privileged information to the trustee-in-bankruptcy without your bankrupt client's consent. Although you may not be compelled to disclose privileged communications concerning your client in bankruptcy, you may have to disclose factual information about the bankrupt's affairs that are not considered communications between you and your client for the purpose of legal advice and, as such, protected by solicitor-client privilege.
Inthe Ontario Supreme Court held that a lawyer may be compelled to "disclose all information regarding the bankrupt's affairs, transactions and the whereabouts of his property, etc. Chilcott, 48 O. The parents of a minor client I am representing have requested access to information about her. May I give it to them? The minor child is your client. You owe her the duty of confidentiality and your communications with her for the purpose of giving her legal advice are covered by solicitor-client privilege.
Any decision regarding the disclosure of information and waiver of the privilege belongs to your minor client and not to her parents or to you as her lawyer. This assumes that the minor child is legally competent to instruct counsel. See the end of this answer for situations in which the minor child is not competent to instruct counsel. Even if information is not covered by solicitor-client privilege, you have an ethical obligation to avoid disclosure of any of your client's affairs, even to members of her family.
The duties of confidentiality and loyalty towards a client, including a client who is a minor, ensure that the client can share information freely with you, and receive the best possible legal advice.
You should explain both solicitor-client privilege and a lawyer's duties of confidentiality and loyalty to your client. Have the conversation with your client without her parents present. Your client may chose to share information with her parents and may authorize you to do so, but this must clearly be her choice after she understands your duties to her.
When your client's parents are paying your fees, some information about billing and fees may need to be disclosed to them for practical reasons. The financial information you will need to share with her parents should be clearly outlined in the retainer agreement with the minor to avoid any misunderstandings. You will take instructions from the litigation guardian. Child is not competent to instruct counsel: Unless there are relevant limitations on the power of that guardian, you will take instructions from the guardian.
I am representing an elderly client whose competence to decide some matters for himself is deteriorating.
His children have asked me to provide them with some information about him and to disclose confidential documents. Your duties of loyalty and confidentiality to your client remain the same regardless of the legal competence of your client. You cannot share confidential information with anyone, including family members, without the explicit or implicit authorization of your client or a court order or other legal authorization. As well, the duty of confidentiality survives the end of the retainer and continues indefinitely, even after the death of a client.
Should you believe that your client has developed reduced or questionable mental competency46, you still have a duty to maintain a normal lawyer and client relationship, as far as is reasonably possible. Lawyers for clients with reduced competency have an ethical obligation to ensure that their clients' interests are not abandoned and that their confidential relationship is not compromised by unauthorized disclosure.
This representative may be a family member. If these steps are necessary, you must not disclose more information than is required. I have received a request to disclose information pertaining to a former client's will and power of attorney.
How do I respond? May I charge the former client's estate for the time spent reviewing notes to answer the request? Your duty of confidentiality protects all information about current and former clients. The death of a former client does not alter this duty of confidentiality which persists after the end of the retainer and survives the client's death.
Any information that you obtain during the lawyer-client relationship may not be disclosed unless by judicial order; there are, however, some nuances in the wills context. Because a will is not a solicitor-client communication and therefore not protected by privilege, the information contained in the will is not privileged.
Nevertheless, the instructions relating to the drafting of the will are privileged communications.Wendy Spencer, CEO, Corporation for National and Community Service
The privilege may only be waived by the client and not by the lawyer even after the client's death. Waiver of privilege exceptions: In cases involving wills and estates, however, the rules governing a waiver of privileged information have been relaxed.
To understand and give effect to the testator's intentions or to determine the existence of a will, the courts have accepted the disclosure of privileged communications. The Court's rationale was that it was in the interest of justice to determine the intentions of the deceased. In cases where there is confusion regarding the appropriate distribution of an estate, "there is no privilege to waive until the true intentions of the settlor are ascertained, which in turn requires the testimony of the solicitor to be received.
Fees to former client's estate: The billing arrangements for work that a lawyer may have to do for the estate of a deceased client is often outlined in the retainer agreement with the former client.
It usually envisages billing the estate. When you receive the initial request from the former client's estate, you should confirm that you will be charging for your time in responding to the request. The appropriate fee level is governed by the various law societies, all of which require that fees be fair and reasonable under the circumstances. Goodman Estate, FN You need to be certain of the identity of your client at the outset or you are vulnerable to an after-the-fact examination with a possible unfortunate result.
An approach to determining "who is the client? Primrose Drilling Ventures Ltd. The Alberta Court of Queen's Bench assessed the relationship between outside counsel and other corporate members based on both objective and subjective criteria. Assuming that you are retained by the directors personally and not by the corporation, when the corporation shares information with you this could be considered a waiver of their confidentiality or solicitor-client privilege protections.
However, Canadian courts have shown a willingness to recognize a "common interest exception" to the rule of waiver which would likely apply in this case. It might still be protected with respect to third parties.