Ch.2.Allocating Decision-Making Between Cawyer and Client
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Transcript of Ch.2.Allocating Decision-Making Between Cawyer and Client
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Ch. 2 - part.2 Basic elements oflaw practice 1
Professional Responsibility
Ch. 2 basic elements of lawpractice
Allocating Decision-making Between
Lawyer & Clientrof. !eorge ". Conk #enior $ellow% #tein Center for Law &
thics% $or'ham Law #chool (oom )-122 gconk*law.for'ham.e'+
mailto:[email protected]:[email protected] -
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,aster
,o+thpiecen'epen'ent agent
Allocating decision-making between lawyer
and client
Ch. 2 neecti/e assistance an'the lawyer client relationship 2
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RPC 1.2 Scope of representation
Abide by clients decisions re
objectives
Consult as to means
Implied authority as to means
Settlement, plea, waive jury,
testify belong to client
Ch. 2 neecti/e assistance an'the lawyer client relationship 0
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RPC 1.2 Scope of representation
Representation is not
endorsement of clients acts or
views Reasonable limits on scope
permitted with informed consent ay not counsel criminal or
fraudulent conductCh. 2 neecti/e assistance an'the lawyer client relationship
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Q. 2-3! p. 1"3 Strategy and tactics
A Lawyer nee' not follow client3sinstr+ctions
B Lawyer m+st follow client3sinstr+ctions
C (+les b+t not 4thAmen'mentre5+ire lawyer to make thearg+ments
D 4thAmen'ment b+t not (+lesre5+ire lawyer to make the arg+ment
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Ch. 2 neecti/e assistance an'the lawyer client relationship 4
A#t$ority Reser%ed to &awyerLawyer 'eci'es after cons+ltation7 what witnesses to call whether and how to cross!
e"amine
what jurors to accept or stri#e what trial motions to ma#e all other strategic and tactical
decisionsSource: ABA Standards Relating to the
Administration of Criminal Justice 4-5.2(! (2d ed."#$2!
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'ones %. (arnes )*.S. 1+3,
$he Si"th Amendment provides
that %&in' all criminal
prosecutions, the accused shall
enjoy the right ( ( ( to have the
Assistance of Counsel for his
defence%
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'ones %. (arnes )*.S. 1+3, p. 13
n An'ers% this Co+rt hel' that an
appointe' attorney m+st a'/ocatehis client9s ca+se /igoro+sly an' maynot with'raw from a nonfri/olo+s
appeal.:he Co+rt of Appeals ma;ority hel'
that% since An'ers bars co+nsel from
aban'oning a nonfri/olo+s appeal% italso bars co+nsel from aban'oning anonfri/olo+s iss+e on appeal.
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"ho 'eci'es= An' how=
&imiting t$e scope of
representation
Ch. 2 neecti/e assistance an'the lawyer client relationship 1>
2 3+ 1" t
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. 2-3+p 1" c ent sinstr#ctions to limit disco%ery!
etc. A ?es - Lawyer m+st followinstr+ctions
B ?es - Lawyer an' client may agreeto limit scope
C @o lawyers may ne/er limitscope of representation
D @o lawyers can limit scope b+tnot in these circ+mstances
Ch. 2 neecti/e assistance an'the lawyer client relationship 11
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Q. 2-"/! p. 1/
0 s lawyer s#bect to discipline for
ref#sal to accept t$e settlement offer A ?es beca+se fee increase' on
appeal
B ?es beca+se client 'irecte' heaccept settlement
C @o whether to appeal is a
tactical matter D @o beca+se pre'iction on merits
of appeal re5+ires eercise of
in'epen'ent ;+'gmentCh. 2 neecti/e assistance an'the lawyer client relationship 12
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Q. 2-"1! p. 11 4alpractice or
disciplinary breac$ for fail#re to follow
instr#ctions A (+les an' malpractice re5+irelawyer ignore instr+ctions of client
B (+les are +nclear b+t malpracticelaw re5+ires compliance
C (+les an' malpractice law re5+irecompliance
D (+les are +nclear b+t malpracticelaw re5+ires lawyer to followinstr+ctions
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State %. 'o$n 4artini )6' 1++5, 9(@% .
A capital defendant may not waive asentencing hearing, may not waive the
presentation of mitigating evidence, and may
not waive an appeal. Given the importance of post-conviction relief
to ensuring the reliability and integrity of
death sentences imposed in New Jersey, acapital defendant may not waive post-
conviction relief, either.
. Ch. 2 - part.2 Basic elements oflaw practice 16
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Q.2-"3! p. 15/ 0 7id attorney properly
co#nsel client abo#t conse8#ences of
%iolating S#nday bl#e law A ?es if information wo+l'enco+rage law /iolation
B ?es if lawyer faile' to 'isco+ragelaw breaking
C @o if lawyer merely ga/e a'/icere likely res+lt of law breaking
D @o it3s ok to 'isc+ss how toa/oi' 'etection
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People v. Chappell (CO 1996)
.y advice as a lawyer was to
stay and as a mother to run/0
1hy was Chappell disbarred2
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Q. 2-""! p. 15" s it proper for a lawyer
to ad%ise a client to pay a fatally flawed
claim A ?es if lan'lor' 'i' not ob;ect to
the a'/ice
B ?es - beca+se non-legalconsi'erations may be appropriate
C @o engagement letter 'i' not
incl+'e s+ch a'/ice D@o lawyer m+st Eealo+sly protect
client3s legal rights
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Q. 2-"! "5 p. 155. ay a lawyer adjourn a case for
his own convenience without the
clients consent2
ust a lawyer refuse an
adjournment reuest because
his client says to .give noCh. 2 neecti/e assistance an'the lawyer client relationship 2>
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Q. 2-": 0 p. 15+
&awyer represents tobacco companydefendant
ay a lawyer represent a morally
reprehensible client2
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Q. 2-"! p. 1:/
Client belie%es landlord is s$ootinggamma rays into $er apartment
3ow do you handle a client
who is becoming demented
or psychotic2
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Q. 2-" ;amma rays