Ethical Considerations in Forming and Maintaining the Attorney-client Relationship

• Publication year: 2003
• Pages: 31
• Citation: Vol. 32 No. 10 Pg. 31

32 Colo.Law. 31 Colorado Lawyer 2003.

2003, October, Pg. 31. Ethical Considerations in Forming and Maintaining the Attorney-Client Relationship

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31

Vol. 32, No. 10, Pg. 31

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 31]

Ethics for the Colorado Lawyer

Ethical Considerations in Forming and Maintaining the Attorney-Client Relationship

by Cindy Fleischner, Troy R. Rackham

Cindy Fleischner is a founding shareholder, and Troy Rackham is an associate, with McConnell Siderius Fleischner Houghtaling & Craigmile, LLC - (303) 480-0400. The authors represent professionals in licensing, discipline, and malpractice matters. Cindy Fleischner is a member of the CBA Ethics Committee

Cindy Fleischner Troy Rackham

Greta Greyhair marvels at how fast her firm, Acme, Best &amp Crown ("ABC"), has grown. A year ago, a mid-sized firm merged into ABC. Since then, ABC has hired a number of new and experienced associates to handle what seems to be an ever-increasing amount of business. As glad as she is for the growth, Greta worries about whether all of the lawyers are as conscientious as they should be about taking on new work. Not one just to sit and worry, Greta decides that the time has come for her to give an in-house training session

Greta begins to outline her talk. To drive her points home, and keep everyone awake, Greta quickly settles on organizing the session around one of her favorite analogies. Greta believes that entering into an attorney-client relationship that is lasting is much like getting engaged and then married.1 Her training session will not only explore the engagement between attorney and client - the formation of the relationship - but also will follow the "happy couple" through the wedding and then to the honeymoon. She will emphasize that anyone contemplating an engagement and marriage must form such a relationship with caution. As when buying that precious engagement ring, an attorney entering into any attorney-client relationship needs to evaluate the four "C's." In the world of ethics, the four C's are not cut, clarity, color, and carat, but competence, conflicts, communication, and commitment.2

Pleased with her analogy, Greta decides to divide her talk into two parts. The first part will address the first two "C's" - what should be considered before getting "engaged": competence and conflicts. Specifically, she will cover the ethical considerations that the attorney should keep in mind when determining whether to take on the representation, whether there is a conflict that could prohibit the representation, and whether the client needs to seek the advice of independent counsel.

In the second part of the training, Greta will discuss the last two C's: communication and commitment. These are crucial from the first introduction, during the engagement and honeymoon, and through the entire marriage. On these matters, she will summarize the ethical issues involved with determining the scope of the attorney's representation and communicating with potential and actual clients. Greta also will examine the possible exposure for the unwary lawyer who, assuming he or she has sailed through the engagement and wedding without a hitch, slips during the honeymoon and is exposed to the risk of discipline or a malpractice lawsuit. Finally, as in marriage, lack of commitment is a likely cause when the attorney-client relationship begins to crumble. A lack of commitment on either the attorney's or the client's part can lead to an unhappy and problematic separation.

Based on this outline, Greta begins to write the training materials. With the help of the firm's librarian and her laptop, she accesses resources such as the Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC") and formal ethics opinions from the Colorado Bar Association Ethics Committee ("CBA Ethics Opinions"). Knowing this project will take several hours, Greta puts her phone on "do not disturb" and settles herself down to the task at hand.

Competence and Conflicts

Prior to and during the engagement, an attorney should focus on the first two C's: competence and conflicts. Initially, the attorney must seriously evaluate whether he or she is competent to handle the representation. Second, assuming the attorney is competent, the attorney must perform a comprehensive conflicts check to make sure there are no obvious and not-so-obvious conflicts. Determining whether the first two C's are met will help to ensure that the engagement matures into a successful marriage.

Competence

An attorney may not enter into an attorney-client relationship without making sure that he or she is competent to handle the matter.3 Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.4 An attorney who lacks competence to represent the client could end up in a failed "marriage." Dissolution of the marriage may not be the only lamentable result. The attorney also may be exposed to a legal malpractice action5 or a disciplinary investigation.6 The careful attorney, therefore, should evaluate competency issues before undertaking any representation.

First, the attorney should determine whether he or she is capable of handling the matter, has the staffing or resources to do so and, perhaps most important, has the time to handle the representation.7 The allure of a new, paying client often can seduce even the most careful lawyer into entering into an attorney-client relationship when he or she does not have the time, ability, or resources to do so.

If the attorney is doubtful about his or her competence, resources, or availability, the attorney should not enter into the relationship, but should reject the "engagement" proposal. At this point, Greta thought she should stress that the ethical obligation of competence does not require the attorney to be infallible.8 Mistakes happen, and mistakes do not necessarily equate to negligence.9

Conflicts

Greta then moved on to the subject of conflicts. Before entering into the relationship - before getting "engaged" - the attorney first must examine whether he or she is free to do so. Do the attorney's former or present engagements restrict him or her from representing the client?

Generally, an attorney cannot represent a client: (1) whose interests will be adverse to the interests of another client or (2) when the attorney's representation will be materially limited by responsibilities to another client, a third person, or the attorney's own interests.10 Colo.RPC 1.7(a) specifically prevents an attorney from representing a client if the representation of...