Restatement Rules

"§14. Formation of a Client-Lawyer Relationship

A relationship of client and lawyer arises when:
(1)    a person manifests to a lawyer the person’s intent that the lawyer provide legal services for
the person; and either
(a)   the lawyer manifests to the person consent to do so; or
(b)   the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably
should know that the person reasonably relies on the lawyer to provide the services. "

"Restatement § 14(2) explains that a lawyer-client relationship arises when “a tribunal with
power to do so appoints the lawyer to provide services.”

Restatement § 15(1)(c): A lawyer must “use reasonable care to the extent the lawyer provides *
* * legal services” to a prospective client. "

Restatement § 15 Comment e explains that:

When a prospective client and a lawyer discuss the possibility of representation, the lawyer
might comment on such matters as whether that person has a promising claim or defense,
whether the lawyer is appropriate for the matter in question, whether conflicts of interest exist
and if so how they might be dealt with, the time within which action must be taken and, if the
representation does not proceed, what other lawyer might represent the prospective client. * * *
The lawyer must also not harm a prospective client through unreasonable delay after indicating
that the lawyer might undertake the representation."

"Restatement § 21 Comment d: A lawyer is not required to carry out an instruction that the
lawyer reasonably believes to be contrary to professional rules or other law or which the lawyer
reasonably believes to be unethical or similarly objectionable."

Restatement § 48, “a lawyer is civilly liable for professional negligence to a person to whom the
lawyer owes a duty of care * * * if the lawyer fails to exercise care * * * and if that failure is a
legal cause of injury[.]”

1
Restatement § 52 defines the “standard of care” as “the competence and diligence normally
exercised by lawyers in similar circumstances"

Restatement § 52(d) A lawyer may be held to a higher standard where a lawyer has a “special
skill” or where a lawyer “represents to a client that the lawyer has greater competence or will
exercise greater diligence than that normally demonstrated by lawyers * * * undertaking similar
matters.”

Restatement § 52 Comment f explains, “[a] rule or statute regulating the conduct of lawyers but
not providing a damages remedy does not give rise to an implied cause of action for lack of care
or fiduciary breach.”"

Nonclients - Restatement § 51 identifies three limited circumstances under which lawyers have
a duty of care to nonclients. These are:
1.  “[T]he lawyer or (with the lawyer’s acquiescence) the lawyer’s client invites the nonclient
to rely on the lawyer’s opinion or provision of other legal services, and the nonclient so relies;
and * * * the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled
to protection[.]”
2.  “[T]he lawyer knows that a client intends as one of the primary objectives of the
representation that the lawyer’s services benefit the nonclient; * * * such a duty would not
significantly impair the lawyer’s performance of obligations to the client; and * * * the absence
of such a duty would make enforcement of those obligations to the client unlikely[.]”
3.  “[T]he lawyer’s client is a trustee, guardian, executor, or fiduciary acting primarily to
perform similar functions for the nonclient; * * * the lawyer knows that appropriate action by
the lawyer is necessary with respect to a matter within the scope of the representation to prevent
or rectify the breach of a fiduciary duty owed by the client to the nonclient, where (i) the breach
is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach; * * * the nonclient is
not reasonably able to protect its rights; and * * * such a duty would not significantly impair the
performance of the lawyer’s obligations to the client.”

2
Restatement § 58(1) explains that “[a] law firm is subject to civil liability for injury legally
caused to a person by any wrongful act or omission of any principal or employee of the firm who
was acting in the ordinary course of the firm’s business or with actual or apparent authority.”

Restatement § 68 defines the privilege as follows:

Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked
as provided in § 86 with respect to:
(1)   a communication
(2)   made between privileged persons
(3)   in confidence
(4)   for the purpose of obtaining or providing legal assistance for the client.
The Restatement sections that follow § 68 define each of these elements and set forth exceptions
to the privilege."

"Restatement § 69 defines the communication element of the attorney-client privilege as

follows:
A communication within the meaning of § 68 is any expression through which a privileged
person, as defined in § 70, undertakes to convey information to another privileged person and
any document or other record revealing such an expression."

"Restatement § 70 defines the “privileged persons” element in the following manner:

Privileged persons within the meaning of § 68 are the client (including a prospective client), the
client’s lawyer, agents of either who facilitate communications between them, and agents of the
lawyer who facilitate the representation."

"Restatement § 71 provides additional information about what it means for a communication to

be “in confidence.” It states:
A communication is in confidence within the meaning of § 68 if, at the time and in the
circumstances of the communication, the communicating person reasonably believes that no one
will learn the contents of the communication except a privileged person as defined in § 70 or
another person with whom communications are protected under a similar privilege."

3
Restatement § 72: A communication is made for the purpose of obtaining or providing legal
assistance within the meaning of § 68 if it is made to or to assist a person:
(1)   who is a lawyer or who the client or prospective client reasonably believes to be a lawyer;
and
(2)   whom the client or prospective client consults for the purpose of obtaining legal assistance."

Restatement Section 73 provides as follows:

When a client is a corporation, unincorporated association, partnership, trust, estate, sole
proprietorship, or other for-profit or not-for-profit organization, the attorney-client privilege
extends to a communication that:
(1)   otherwise qualifies as privileged under §§ 68–72;
(2)   is between an agent of the organization and a privileged person as defined in § 70;
(3)   concerns a legal matter of interest to the organization; and
(4)   is disclosed only to:
(a)   privileged persons as defined in § 70; and
(b)   other agents of the organization who reasonably need to know of the communication in
order to act for the organization.

"Restatement § 79 provides: “The attorney-client privilege is waived if the client, the client’s
lawyer, or another authorized agent of the client voluntarily discloses the communication in a
nonprivileged communication.” "

"Restatement § 82 sets forth the crime-fraud exception to its attorney-client privilege. This
section states:
The attorney-client privilege does not apply to a communication occurring when a client:
(a)   consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a
crime or fraud or aiding a third person to do so, or
(b)   regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or
other services to engage in or assist a crime or fraud."

4
Restatement.3d § 96 cmt. b (explaining that a lawyer retained by a corporation has an attorney-
client relationship with the corporation, but the lawyer “does not thereby also form a client-
lawyer relationship with all or any individuals employed by it or who direct its operations or who
have an ownership or other beneficial interest in it, such as shareholders"

"Comment (f) to § 128 of the Restatement provides further tools and illustrations helpful to the
positional conflicts analysis:
* * * Factors relevant in determining the risk of such an effect include whether the issue is before
a trial court or an appellate court; whether the issue is substantive or procedural; the temporal
relationship between the matters; the practical significance of the issue to the immediate and
long-run interests of the clients involved; and the clients’ reasonable expectations in retaining the
lawyer. If a conflict of interest exists, absent informed consent of the affected clients under §
122, the lawyer must withdraw from one or both of the matters. Informed client consent is
provided for in § 122. On circumstances in which informed client consent would not allow the
lawyer to proceed with representation of both clients, see § 122(2)(c) and Comment g(iv)
thereto."

Restatement § 117 summarizes the law on compensating witnesses. It provides that:

[a] lawyer may not offer or pay to a witness any consideration:
(1)   in excess of the reasonable expenses of the witness incurred and the reasonable value of the
witness’s time spent in providing evidence, except that an expert witness may be offered and
paid a noncontingent fee;
(2)   contingent on the content of the witness’s testimony or the outcome of the litigation; or
(3)   otherwise prohibited by law."

"Restatement § 113 Comment (c) explains that the prohibition on ex parte communications
“does not apply to routine and customary communications for the purpose of scheduling a
hearing or similar communications[.]” As Comment (d) notes, the law generally permits ex parte
communications for purposes of obtaining a temporary restraining order, but that in such
circumstances a “special duty of candor” arises. Rule 3.3(d) codifies this duty by requiring a
lawyer “[i]n an ex parte proceeding [to] inform the tribunal of all material facts known to the

5
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.”"

ABA Rules
"Rule 8.1 prohibits an individual who submits “an application for admission to the bar” from
“knowingly mak[ing] a false statement of material fact” or “fail[ing] to disclose a fact necessary
to correct a misapprehension … or knowingly fail[ing] to respond to a lawful demand for
information from an admissions or disciplinary authority.”"
Rule 6.2 provides that a lawyer “shall not seek to avoid appointment * * * to represent a person
except for good cause, such as:
(a)   representing the client is likely to result in violation of the Rules of Professional Conduct or
other law;
(b)   representing the client is likely to result in an unreasonable financial burden on the lawyer;
or
(c)   the client or the cause is so repugnant to the lawyer as to be likely to impair the client-
lawyer relationship or the lawyer’s ability to represent the client.”
Board"
"Rule 5.4(a) prohibition states that “[a] lawyer or law firm shall not share legal fees with a
nonlawyer.”
"Rule 1.17. Another exception allows a lawyer to share “court-awarded legal fees with a
nonprofit organization that employed, retained or recommended employment of the lawyer in the
matter"
Rule 5.4 and then apply its provisions to Question 2-2:
(b)   A lawyer shall not form a partnership with a nonlawyer if any of the activities of the
partnership consist of the practice of law.
(c)   A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render
legal services for another to direct or regulate the lawyer’s professional judgment in rendering
such legal services.
(d)   A lawyer shall not practice with or in the form of a professional corporation or association
authorized to practice law for a profit, if:

6
(1)   a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of
a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2)   a nonlawyer is a corporate director or officer thereof or occupies the position of similar
responsibility in any form of association other than a corporation; or
(3)   a nonlawyer has the right to direct or control the professional judgment of a lawyer.

"Rule 5.7(b) defines law-related services as “services that might reasonably be performed in
conjunction with and in substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer.” Rule 5.7(a) makes a
lawyer:
subject to the Rules of Professional Conduct with respect to the provision of law-related services
* * * if the law-related services are provided:
(1)   by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal
services to clients; or
(2)   in other circumstances by an entity controlled by the lawyer individually or with others if
the lawyer fails to take reasonable measures to assure that a person obtaining the law-related
services knows that the services are not legal services and that the protections of the client-
lawyer relationship do not exist."

Rule 8.4(c), it is professional misconduct for a lawyer to engage in conduct involving

dishonesty, fraud, deceit or misrepresentation even if that conduct does not occur in the course of
representing a client."

"This “middle view” is the approach used in the rules of professional conduct.
Rule 1.2(a) governs allocation of decision-making authority between lawyer and client and
provides that: Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult with the
client as to the means by which they are to be pursued. A lawyer may take such action on behalf
of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a
client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the

7
client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify."