Lawyer and Client Responsibilities and Duties Concerning Litigation

We want to thank you for the opportunity to represent you respecting your litigation needs. You will be and are a valued client, and we will do what we can to see to it that there is a successful conclusion to your litigation.  In that regard, we felt that it would be helpful to understand generally how litigation works; what we will and can do as your attorneys and what we are not permitted to do and what is required of you.

Litigation

In litigation there are, generally, several stages.  In each stage, motions may be filed to address matters that require Court attention.  In each stage, care must be taken to be truthful, because failure to be truthful can cause adverse consequences up to and including dismissal of a suit or a defense to a suit and the payment of money.  A brief outline of some of what happens in litigation follows. 

The usual first thing to happen in litigation is that a document called a complaint or petition is filed by one or more parties making a claim or claims against one or more other parties, who must be served a copy of the complaint or petition as required by statute.  A complaint or petition alleges facts that generally must be proven later in the litigation; the allegations are not proof of the facts alleged if they are denied by the persons against whom a complaint or petition is filed.  If a party has a claim which the law protects, it is possible to sue individuals, business entities and state and federal governments.

If the complaint or petition is sufficient as a matter of law, which often must be determined by the Court after a motion is filed, the party or parties who are sued generally file an answer to the complaint or a response to the petition in which they generally deny the allegations and in which they may assert defenses called affirmative defenses.  The party answering the complaint or responding to a petition may also allege claims against the persons filing the complaint or petition, may make claims against other persons already sued or may make claims against third parties not a part of the original suit, who then also have the right to file documents denying the claims and asserting affirmative defenses.

Throughout the course of litigation, the parties in the litigation will attempt to find out facts which support their position in the litigation.  This is called discovery.  In discovery, the parties to the litigation have the right to request written answers under oath to relevant questions from the other parties, to demand the production of relevant documents from parties and non-parties to the litigation and to orally ask parties and non-parties questions under oath.  Objections to the written and oral questions and to the production of documents may be made on grounds in addition to irrelevance, which may then require a court decision.

Once discovery is complete, motions may be filed asking the Court to make the final decision or the case may be tried before a judge or a jury, depending on the nature of the case.  Once the trial is complete and a decision is made, any party who is unhappy with the case may appeal the decision to a higher court.

Throughout the litigation process, settlement of the litigation may be attempted by the parties themselves or through a mediator to whom the parties may agree or as ordered by the Court.  Once the litigation is settled, it is usually dismissed.

There is also a process called arbitration which may be agreed to by the parties and which may be handled in a similar fashion, but in which the Court is usually not directly involved and private individuals agreed on by the parties make the decisions.

 Our Responsibilities to You

We, as members of the legal profession, represent you while at the same time having special responsibility for the quality of justice.  We will act with reasonable diligence and promptness in representing you.  Moreover, our loyalty to you and our independent judgment are essential elements in our relationship with you. 

As your representative, we perform various functions.  As an adviser, we will provide you with an informed understanding of your legal rights and obligations and explain their practical implications.  As an advocate, we will zealously assert your position under the rules of the adversary system.  As a negotiator, we seek a result advantageous to you but consistent with requirements of honest dealing with others.  As an evaluator, we act by examining your legal affairs and reporting about them to you or to others.

It is of utmost concern to us that we treat any information received from you as confidential.  As your lawyer, we must keep in confidence and not disclose information which you or your agents provide to us, except so far as disclosure is required or permitted by our Rules of Professional Conduct or by law, such as in a pleading or during discovery.  A lawyer must, for instance, reveal confidential information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another.  A lawyer may also reveal confidential information only under very limited additional circumstances.   In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed or in negotiation by making a disclosure that facilitates a satisfactory conclusion.

We will explain matters to you to the extent reasonably necessary to permit you to make informed decisions regarding the representation and will abide by your decisions concerning the objectives of representation, so long as we continue to represent you.  One of the lawyer’s functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights. We will

(1) promptly inform you of any decision or circumstance with respect to which your informed consent is required by our Rules of Professional Conduct;

(2) reasonably consult with you about how your objectives are to be accomplished;

(3) keep you reasonably informed about the status of your matter;

(4) promptly comply with reasonable requests for information from you; and

(5) consult with you about any relevant limitation on our conduct when we know or reasonably should know that you expect assistance not permitted by the Rules of Professional Conduct or other law.   

At the same time, we are not required to pursue objectives or employ means simply because a client may wish that we do so.  A lawyer and a client may disagree about the means to be used to accomplish the client's objectives.  If such should occur as to your representation, which we do not expect as that is very rare, we will consult with you and seek a mutually acceptable resolution of the disagreement.  If such efforts are unavailing and we continue to have a fundamental disagreement with you, we may withdraw from or you may terminate the representation.

What We May Not Do

As lawyers, we may, however, use the law’s procedures only for legitimate purposes and not to harass or intimidate others.  We cannot bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.  We may not demonstrate disrespect for the legal system and for those who serve it, including judges, other lawyers, and public officials.  While it is our duty, when necessary, to challenge the rectitude of official action, it is also our duty to uphold the legal system.

As lawyers, we are not bound to press for every advantage that might be realized for you.  We may not counsel any client to engage, or assist any client, in conduct that we know or reasonably should know is criminal or fraudulent.  However, we may discuss the legal consequences of any proposed course of conduct with you and may counsel or assist you to make a good faith effort to determine the validity, scope, meaning, or application of the law.  We are required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct, but we may not continue assisting a client in conduct that we originally supposed was legally proper but then discover is criminal or fraudulent.

Our own personal interests cannot have adverse effect on your representation.  Moreover, under our Rules of Professional Conduct, we cannot represent a client if: (1) the representation of one client will be directly adverse to another client; or (2) there is a substantial risk that the representation of one or more clients will be materially limited by our responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Notwithstanding the existence of a conflict of interest, we may represent a client if: 

(1) we reasonably believe that we will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a position adverse to another client when we represent both clients in the same proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.

As a general proposition, loyalty to a client prohibits our undertaking representation directly adverse to that client's or another client's interests without the affected client's consent.  Thus, we ordinarily may not act as advocate against a person we are at that time representing in some other matter, even if it is wholly unrelated.  On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients.  When representation of multiple clients in a single matter is undertaken, we will explain the implications of the common representation and the advantages and risks involved in order to obtain the clients’ consent.

A lawyer who has formerly represented a client in a matter must not afterwards: (a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or (b) use or reveal information relating to the representation to the disadvantage of the former client except as the Rules of Professional Conduct permit or require with respect to a client or when the information has become generally known.

Finally, a lawyer may only in limited circumstances enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses.

What You Can Do To Help Us Help You

For us to represent you, we must have written confirmation from you consenting to the representation.  That is why we give clients written representation agreements with general guidelines to sign.

It is particularly important that you are truthful with and provide complete information to the court, government agencies and us.  Failure to do so may result in court-imposed monetary damages and other sanctions. 

It is also important that you immediately inform us of any change in your marital status and as to your address(es), telephone number(s) and e-mail address(es).  You must be easy to reach at all times and be available to assist in your matter, including attendance at depositions, hearings, trials and other meetings.  Delays may jeopardize the case and/or incur additional costs.