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THE ATTORNEY-CLIENT RELATIONSHIP
AND SETTLING DISPUTES
GENERAL COMMENTS
Some professors may be pressed for time and choose to skip this chapter and its unique contents. For
at least two good reasons we hope you do not.
First, this chapter is about the attorney-client relationship and licensing requirements, but the
principles are applicable to other professional relationships. What is a profession? What duties do
professionals have and to whom? The legal profession is being challenged in ways that will significantly
affect how and which legal services will be made available to students as they progress through their
lives.. How do prospective clients make wise selections of professionals? What quality of service should
they expect? How can clients protect themselves? How does one balance the benefits of protecting the
public through assurance of minimal competence with the anti-competitive protection that all licensing
extends to those who are in the protected licensed group? These are all questions of great practical
importance or personal interest to students.
In this chapter, we encourage respect for officers of the court. We express our conviction that
knowledgeable clients should be prepared and active participants. They should not give up control of their
lives when they hire professional help. Therefore, we discuss professional ethics and standards,
specializations, fees, selection of attorneys, unauthorized practice, advertising, and privilege. We
conclude with a fairly detailed discussion of alternative dispute resolution.
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CHAPTER SUGGESTIONS
1. New topics to discuss include, “What will the legal profession look like in the future?”. Will access
to legal materials make self-help easier and more accessible? Will organizations such as HALT
continue to seek reform in the law, making legal services less protected by licensing laws? Does
state licensing of attorneys make sense in light of commerce in the 21st century?
3. All owners of business associations that provide attorney services must be licensed by a state bar.
Therefore, ownership in these associations is restricted to licensed attorneys. What are the pros and
cons of these restrictions? You can bring in a discussion of the ethical violations of accounting
firms in business crashes such as Enron. Some believe the accounting firms’ drift from auditing to
consulting work contributed to the environment where such ethical lapses could occur. A
manageable short book on the downfall of Arthur Anderson is “Final Accounting,” by Barbara Ley
Toffler © 2003 published by Doubleday.
4. In the late 1980s, the editors of the professional journals of the American Bar Association and of
the American Medical Association made an unusual public proposal. They suggested that both
5. Some organizations of attorneys open offices in suburban shopping centers and in retail stores.
Their presence suggests availability of inexpensive legal services for routine legal problems. What
advantages and disadvantages flow from these “law clinics?” Law clinics originally were supposed
The Attorney-Client Relationship and Dispute Resolution 3
6. Many unions and fraternal associations offer group legal insurance, just as they offer group health
insurance plans. Do consumers have a genuine need for such insurance? What are the pros and cons
of individual legal insurance policies? Most consumers require legal services at one time or another.
7. Cable and satellite broadcast services still broadcast old Perry Mason and Ben Matlock television
shows. Any syndicated show with a legal theme is likely to be accompanied by advertisements of
legal services. Videotape the advertisements. View and discuss the advertisements. Do they
engender respect for the law? Is respect for the law a meaningful concept? Are questionable claims
being made? Would students seek help from these firms? Why or why not? How do these ads
compare to Yellow Page telephone book ads and local billboard ads by attorneys?
8. Does your community have a lawyers’ referral system? How does it work? What screening, if any,
is made before attorneys are added to the list? How are cases referred? Is there an agreement to
provide a reduced or minimal fee for the initial interview? Does your community have a Tel-Law
type system, where a person can phone in and get mini-discussions about different types of legal
issues? How helpful are such abbreviated discussions?
9. It is interesting to discuss the social status of various types of law practices. A student could look
for current research on the topic. One could list various types of practice and then discuss attitudes
10. It is not difficult to get a guest speaker about either mediation or arbitration. If the AAA or JAM’s
has a local office, give the office a call and asks them to suggest a speaker.
11. Select a movie on tape. View and discuss the movie’s portrayal of the law and/or the legal
profession. Some of these films might fit while studying other chapters because of the legal or
ethical issues they raise, but they all fit in this chapter. Every edition I update the list with new
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12. Consider the available videos from your West representative or visit the Legal Studies in Business
13. The ABA on line Journal published an article posing an interesting question. Can a disbarred
lawyer work as a paralegal? The answer was maybe. “Disbarred—but Not Barred from Work,
Friday, June 1, 2007 ABA JOURNAL on line
FOR CRITICAL ANALYSIS
New Hampshire v. Gordon
This case allows a fun discussion about students consulting professors for legal advice. For the authors it
allows a reason to discuss why we might decline to give specific legal advice to our students and some
important discussion of the real nature of an attorney-client relationship from the perspective of a client
and an attorney.
1. Our conclusion is that the attorney-client relationship does not arise if the conversation is public.
However, it is not so clear if the conversation is private and clearly related to a personal problem
rather than tied to class discussion. There appears to be little law on point but if a student comes in
and says “I have a legal problem. Can you give me some advice?” the law professor does so at his
or her peril. One clear rule from the cases is that failure to pay for the advice is not determinative of
whether the relationship exists.
The Attorney-Client Relationship and Dispute Resolution 5
Equal Employment Opportunity Commission v. Waffle House, Inc.
1. They wanted the court to dismiss the lawsuit and order Baker to make any claims he had through
arbitration.
2. Students should state reasons as to why they support the argument they choose.
5. They would hope to reduce the costs of processing the conflict, reduce the likelihood of adverse
publicity and perhaps even gain an advantage over the employee. An employee might desire a jury,
discovery, and a public forum. The pubic forum, especially, may cause adverse publicity most
likely for the company. The arbitration is usually a faster and less expensive mean to process the
conflict.
ANSWERS TO QUESTIONS AND PROBLEMS
1. The issues described should prompt expression of many views. Some thought-provokers are
presented to stimulate discussion:
a. There are several valid reasons for specialization in all professions. If specialized skills are
essential in the courtroom, why shouldn’t formal training reflect that distinction? Or, are
courtroom skills so ordinary that all attorneys possess minimal necessary skills?
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2. Discussion question. Clients usually have relatively little to lose in a contingency-fee arrangement,
but the same is not true for the attorney. Litigation costs money (e.g., for investigation and
discovery), and in a contingent-fee arrangements these sums are typically advanced by the attorney.
Ethically, the client is obligated to pay such out-of-pocket costs, whether he or she wins or loses the
3. The English plan tends to discourage frivolous suits that have little basis in fact or in law, and
nuisance suits (e.g. filed against doctors and others presumed to have malpractice insurance and
“deep pockets,” and against auto insurance companies for fraudulent or exaggerated claims after
accidents). To avoid possible embarrassment as well as the legal costs of a defense in court, such
defendants often settle for “nuisance value” without trial. Under the English plan, they are much
4. Discussion question. In many states lawyers must either carry malpractice insurance or provide the
bar association with proof of financial responsibility. However, judgments based on fraud are not
covered by insurance. Thus, victims of the most outrageous fraud by a lawyer may have no
practical remedy at all.
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5. Among the advantages of the relative inability to appeal from an arbitrator’s award are: timeliness
of the final award, which allows parties to move past the dispute; reduction of litigation costs; and
earlier certainty as to result. The disadvantages include the absence of published written and
6. The board disapproved Carr-Williams’ application for admission to the practice of law in Ohio “in
view of evidence that she had neglected her financial responsibilities.” On appeal, the board’s
ruling was upheld. Conviction of the crime of tax evasion does involve “moral turpitude” and
therefore can justify punishment by a state bar association. In re Application of Carr-Williams, 63
Ohio St.3d 752, 591 N.E.2d 693 (Ohio, 1992).
7. The Court of Appeals of New York said yes. This example was one version of several
nonrefundable fee arrangements, and one of several complaints filed in regard to Cooperman’s fee
contract. The court stated that “The attorney’s obligations…transcend those prevailing in the
commercial market place. The duty to deal fairly, honestly, and with undivided loyalty
superimposes onto the attorney-client relationship a set of special and unique duties, including
8. No. The Supreme Court held that a federal court may not require an unwilling attorney to represent
an indigent litigant in a civil case pursuant to a statute authorizing a court to request such
9. Shapero succeeded. The court stated “Our lawyer advertising cases have never distinguished among
various modes of written advertising to the general public.” The court held that the letter, although
geared toward specific parties, offered “no evidence that scrutiny of targeted solicitation letters will
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be appreciably more burdensome or less reliable than scrutiny of advertisements.” The court added
10. The jurisdiction of the arbitrator is based on the arbitration clause in the contract. This clause, a
standard one, is quite broad and embraces not only implied terms in contracts, but has also
supported arbitration awards based upon tort claims. “Any controversy or claim arising out of or
relating to this contract…” grants the arbitrator broad power. The scope of review on appeal is
limited to issues involving procedural fairness and abuse of power. The court “may not inquire as to
whether errors of law were made by the arbitrator in reaching his decision.” In this case, it appears
the court believed the arbitrator made an error of law when he held that implied warranties applied
to ordinary sellers although, in truth, state law restricts their application to professional builders.
Despite the incorrect application of law, the arbitrator’s award was upheld. Hembree v. Broadway
Realty Trust Company, Inc., 151 Ariz. 418, 728 P.2d 288 ( Arizona, 1986).
11. The Court of Appeals upheld the trial court: (1) the arbitration award did not violate a well-defined
constitutional, statutory, or common law of State; (2) the arbitrator’s determination that
reinstatement of the officer did not present a security risk to prison would not be disturbed on
12. This arrangement was neither legal nor ethical. The Florida Supreme Court held that “activities
such as those pursued by Stafford are clearly prohibited. In recent years, perhaps no single aspect of
the practice of law has received more public criticism than the unethical solicitation of clients.” The
court found that Stafford had violated several disciplinary rules, including asking persons to
The Attorney-Client Relationship and Dispute Resolution 9
recommend him for employment, dividing legal fees with a non-lawyer, and engaging in conduct
that adversely reflects on fitness to practice law. The court suspended him “from the practice of law
for a period of six months and upon reinstatement to the Bar, [he] shall be placed on probation for a
period of two years.” Three of seven judges dissented, believing the ruling correct but the
punishment too lenient: “I think in order to restore the public’s faith in our system of discipline it is
necessary that we rid our ranks of this type of lawyer.” The Florida Bar v. Stafford, 542 So.2d 1321
(Florida, 1989).
13. The burden which must be met to overturn an arbitrator’s award is considerable. Grounds for
overturning an award are limited and, while “manifest disregard for the law” is typically one of
these grounds, how does one prove it? Most arbitrator awards lack a reasoned explanation of the