Kansas Bar Journal
Vol. 77 No. 3.
Thinking Ethics: New Developments: An Opinion on Refused Representations and a Cautionary Tale of E-Discovery
Vol. 77 No. 3 March 2008 Thinking Ethics: New Developments: An Opinion on Refused Representations and a Cautionary Tale of E-Discovery By Mark D. Hinderks Representing Clients Who Just Say No
Lawyers are sometimes appointed to serve as counsel for otherwise competent criminal defendants (or others) who then refuse the lawyer's services in a manner or circumstance that does not result in the tribunal excusing the lawyer from the representation. This places the lawyer in a difficult situation: One must consider the normally applicable duties owed to the client and the lawyer's duties to the tribunal arising from the appointment in light of the unwilling "client's" lack of cooperation and desire not to be represented. On Oct. 20, 2007, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 07-448 (Opinion) to provide guidance for attorneys in this situation.
A number of the Kansas Rules of Professional Conduct (KRPC) require interaction with a client to achieve the goals of a representation. KRPC 1.2 requires the lawyer to abide by the client's decisions concerning the objectives of representation (with some limitations). Similarly KRPC's 1.1, 1.3., 1.4, and 1.6 require competent representation, diligence, communication, and a confidential relationship. The lawyer's compliance with these and other rules is undermined when the client is uncooperative and does not wish to be part of an attorney-client relationship. Thus, the Opinion concludes that when a client does not accept the attorney-client relationship, there is no attorney-client relationship for purposes of the Rules of Professional Conduct. Accordingly, the duties of the lawyer in that situation are limited to: Any duties identified and ordered by the appointing tribunal; and any duties the lawyer would otherwise owe to persons other than a client, e.g., duties to the tribunal (KRPC 3.3), opposing parties and counsel (KRPC 3.4), others (KRPC 4.1, 4.2, and 4.3), and the system (KRPC 3.5, and 8.3).
Client Nuked, Lawyers Rebuked: E-Discovery Sanction
In Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), U.S. Magistrate Judge Barbara Major...