Gregory D. Golden
- CLIENT/LAWYER RELATIONSHIP
When does the client/lawyer relationship begin?
When does the client/lawyer relationship end?
What are the parameters of the client/lawyer relationship?
- ATTENDANCE AT CLIENT CONFERENCES BY FRIENDS OR FAMILY OF CLIENT
III. ATTORNEY’S FEES
- COMMUNICATIONS WITH ADVERSE PARTY
The Georgia Rules of Professional Conduct (hereinafter sometimes referred to as the “Rules”) became effective on January 1, 2000. They are designed to give attorneys a framework within which to practice. They are not designed to encompass every possible ethical dilemma; on a certain level, common sense must prevail.
The Rules are divided into nine (9) parts, to-wit: client-lawyer relationship, counselor, advocate, transactions with persons other than clients, law firms and associations, public service, information about legal services, maintaining the integrity of the profession, and miscellaneous. The Rules also provide an important preamble that outlines the framework that attorneys should follow, to-wit:
“ A lawyer is a representative of clients, an officer of the legal system and a citizen having special responsibility for the quality of justice.
 As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s legal affairs and reporting about them to the client or to others.
 In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the these Rules or other law.
 A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the law, the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.
 As a citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
 A lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as by substantive and procedural law. A lawyer also is guided by conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.
 In the nature of law practice conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict among a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.
 The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the Supreme Court of Georgia.
 To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.
 The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
 The fulfillment of a lawyer’s professional responsibility role requires an understanding by them of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.”
- CLIENT/LAWYER RELATIONSHIP
Rule 1.2 of the Georgia Rules of Professional Conduct governs the attorney-client relationship but when does the attorney-client relationship commence? It actually can begin before your client signs your contract to begin representing him/her in a family law matter. Many times, you may talk or meet with a potential client several times before he/she formally retains you. Confidential communications, made to an attorney not actually employed at the time, but which were made in anticipation of employing the attorney, come within the rule protecting privileged communications, and this is true whether the attorney so consulted was or was not afterwards employed to undertake such services concerning which the confidential communications were made. Haywood vs. State, 114 Ga. 111, 39 S.E. 948 (1901). Thus, regardless of whether or not you are actually retained by a potential client, an attorney-client relationship has come into existence and you have a duty to protect the confidentiality of such communications.
So if an attorney-client relationship can begin before you are formally retained, when does the attorney-client relationship end? Once you enter your name as an attorney of record with a trial court, you must obtain the approval of the trial court before you can end your representation of the client if the case is still pending. Thus, regardless of your feelings about your client (or, for that matter, your client’s feelings about you), there are affirmative steps that must be taken in order to end that relationship. Rule 4.3 of the Uniform Superior Court Rules provides the procedure that must be taken to end such a relationship, to-wit:
“(1) An attorney appearing of record in any matter pending in any superior court, who wishes to withdraw as counsel for any party, shall submit a written request to an appropriate judge of the court for an order permitting such withdrawal. The request shall state that the attorney has given written notice to the affected client setting forth the attorney’s intent to withdraw, that 10 days have expired since notice, and there has been no objection, or that withdrawal is with the client’s consent. The request will be granted unless in the judge’s discretion to do so would delay the trial or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client.
(2) The attorney requesting an order permitting withdrawal shall give notice to opposing counsel and shall file with the clerk and serve upon the client, personally or at that client’s last known mailing and electronic addresses, the notice which shall contain at least the following information:
(A) the attorney wishes to withdraw;
(B) the court retains jurisdiction of the action;
(C) the client has the burden of keeping the court informed where notices, pleadings or other papers may be served;
(D) the client has the obligation to prepare for trial or hire new counsel to prepare for trial, when the trial date has been scheduled and to conduct and respond to discovery or motions in the case;
(E) if the client fails or refuses to meet these burdens, the client may suffer adverse consequences, including, in criminal cases, bond forfeiture and arrest;
(F) dates of any scheduled proceedings, including trial, and that holding of such proceedings will not be affected by the withdrawal of counsel;
(G) service of notices may be made upon the client at the client’s last known mailing address;
(H) if the client is a corporation, that a corporation may only be represented in court by an attorney, that an attorney must sign all pleadings submitted to the court, and that a corporate officer may not represent the corporation in court unless that officer is also an attorney licensed to practice law in the state of Georgia or is otherwise allowed by law; and
(I) unless the withdrawal is with the client’s consent, the client’s right to object within 10 days of the date of the notice, and provide with specificity when the 10th day will occur.
The attorney requesting to withdraw shall prepare a written notification certificate stating that the notification requirements have been met, the manner by which notification was given to the client and the client’s last known mailing and electronic addresses and telephone number. The notification certificate shall be filed with the court and a copy mailed to the client and all other parties. Additionally, the attorney seeking withdrawal shall provide a copy to the client by the most expedient means available due to the strict 10-day time restraint, i.e., e-mail, hand delivery, or overnight mail. After the entry of an order permitting withdrawal, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal; thereafter all notices or other papers shall be served on the party directly by mail at the last known mailing address of the party until new counsel enters an appearance.” (Emphasis added.)
Two (2) issues should be noted. First, there has been a recent change to this Rule which requires the attorney to provide notice of the intended withdrawal to the client by the “most expedient means available.” Thus, simply mailing the notice to the client is no longer sufficient; it needs to be e-mailed, hand-delivered, or sent by overnight-mail. Second, from my experience, different courts, clerks, and judges handle, in very different ways, the ten (10) day period to object. A strict reading of the Rule would require the attorney to file the motion or request to withdraw after the ten (10) day period to object has passed (i.e., ten (10) days after you transmitted your notice to withdraw). As such, the attorney would be able to include in said motion or request any response or objection that he/she has received, if any, from the client. However, judges will frequently hold such a motion or request for ten (10) days after it is filed before considering such a request to withdraw; such an occurrence may cause additional issues depending on whether there are matters of immediate concern (e.g., hearings, depositions, discovery deadlines, etc.).
You also need to note that the attorney-client privilege doesn’t just end when the case is over; it continues after client’s death. Smith vs. Smith, 222 Ga. 694, 152 S.E.2d 560 (1966).
How do you define the parameters of the attorney-client relationship? Under no circumstances should you have an oral understanding which defines your attorney-client relationship! It is essential that you and your client execute a contract, memorandum, letter, or other document that defines your relationship, the scope of your representation, as well as the fees that are being charged,
- Are you representing the client in a specific domestic matter? Are you generally on call for his/her domestic law needs? Are you generally on call for all of his/her legal needs (e.g., a divorce, a D.U.I., a speeding ticket, etc.)?
- Are you charging a flat fee or a retainer that is billed against an hourly rate? What is the hourly rate for you and/or your employees? What expenses are the client responsible to pay?
- Is the fee refundable?
- What happens if the client does not pay your bills?
- What obligations (other than financial) does the client have?
These are just some of the issues that should be addressed in a signed document at the outset of the attorney-client relationship. Some attorneys do not want to make such engagement documents too long because they are afraid that it will “scare off” the potential client. However, it is better to have a longer engagement document, that covers all bases (and make it as readable as possible) than it is to wish you had something more when the relationship sours. If and when that should ever happen, you could face judicial scrutiny, a bar grievance, a fee dispute, or a malpractice action. In other words, the after effects of an attorney-client relationship that has soured are preventable or, at least, manageable.
- ATTENDANCE AT CLIENT CONFERENCES BY FRIENDS OR FAMILY OF CLIENT
Except for a death in the family, a client going through a divorce is generally at his/her lowest emotional point. As such, they seek out the support of friends and family. In most circumstances, this is good for the client and for you. Instead of constantly calling, emailing, or texting you for emotional support, your client can seek it from these friends or family. But what happens when these friends or family get involved in the divorce case? O.C.G.A. § 24-5-501(a)(2) provides, in pertinent part, that
“[t]here are certain admissions and communications excluded from evidence on grounds of public policy, including, but not limited to the communications between attorney and client.”
The attorney-client privilege is for the protection and benefit of the client, not of the attorney, so that the client’s disclosures may not be used against the client in controversies with third persons; it is designed to secure the client’s confidence in the secrecy of the client’s communication and to promote greater freedom of consultation between clients and their legal advisers. Marriott Corporation vs. American Academy of Psychotherapists, Inc., 157 Ga.App. 497, 277 S.E.2d 785 (1981). It does not extend to people who are not your clients, such as friends and family members of your clients.
The purpose of the privilege is to keep secret those communications that are made in secret between a client and his/her attorney. In Stone vs. Minter, the Supreme Court of Georgia held that “it is the secrets of the client which affect his right that the law does not permit the attorney to divulge, and it seems to be well settled on authority that if the communication made by the client to the attorney is in the presence of the other party to the contract, and it comes within his knowledge, such communication is not embraced in the rule which prohibits that it may be given in evidence by the attorney when called on so to do.” 111 Ga. 45, 36 S.E. 321 (1900). In a similar ruling, in Cocroft vs. Cocroft, the Supreme Court of Georgia held that “when a client makes to his attorney a communication or statement in the presence of the opposite party as to the transaction in hand, it is not confidential or privileged, and the attorney is a competent witness to testify respecting the same on the trial of a case arising out of such transaction, between the administrator of the client and the other party.” 158 Ga. 714, 124 S.E. 346 (1924).
However, the issue of compelling the attorney to testify to such communications may not be common but the involvement of the third party frequently occurs. Since this third party is not the client of the attorney, he/she cannot refuse to testify at a deposition, temporary hearing, final trial, or other matter on the grounds that such communication is protected by the attorney-client privilege. In fact, a questioning attorney could ask this third party,
- What was discussed during your meeting with the client and the attorney?
- What did you tell the attorney during such a meeting?
- What did the client tell the attorney during such a meeting?
- What did the attorney tell the client during such a meeting?
- What did the attorney tell you during such a meeting?
Such information would not necessarily be protected by the work product doctrine, and it can easily be seen how the disclosure of such information could reveal important litigation strategies.
So when a third party accompanies your client to a meeting, what should you do about it? Initially, you need to explain to the client what gets sacrificed by having the third party remain in the conference (i.e., loss of attorney-client privilege attaching to the communications). If the client wants the third party to remain, then you may want to discuss more general or less sensitive issues while the third party is present and then request the third party to leave the room for a short period of time to discuss other delicate issues. And remember, the client is the client, no matter who is paying the client’s fees; even if a client’s parent is paying your fees, it does not make the parent a de facto client that would be covered by the attorney-client privilege in such conferences.
This tenet of law would not only apply to “in-person” conferences. Telephone conferences with someone in addition to your client would also not protect the conversation within the attorney-client privilege. In addition, it would also apply to writings, especially e-mails and how easily they can get forwarded to other people. It is extremely important to advise your client as to the purpose of the attorney-client privilege as well as the extent that it reaches.
A couple of other items to note about the attorney-client relationship:
- The assertion of the client’-attorney privilege has no application if the client, in an action against the attorney, charges negligence, malpractice, or fraud, or other professional misconduct; in such cases, it would be a manifest injustice to allow the client to take advantage of the rule of privilege to the prejudice of the attorney. Daughtry vs. Cobb, 189 Ga. 113, 5 S.E.2d 352 (1939).
- The mere fact of employment of an attorney is not protected from disclosure, or the amount of the fee being charged. Cranford vs. Cranford, 120 Ga.App. 470, 170 S.E.2d 844 (1969).
- If two or more persons jointly consult or retain an attorney, the communications which either makes to the attorney are not privileged in the event of any subsequent litigation between the parties. Peterson vs. Baumwell, 202 Ga.App. 283, 414 S.E.2d 278 (1991).
- Attorney-client privilege does not encompass matters which the attorney has or gains knowledge through some source other than communications of the attorney’s client in preparation of litigation. Buffington vs. McClelland, 130 Ga.App. 460, 203 S.E.2d 575 (1973).
III. ATTORNEY’S FEES
Rule 1.5 of the Georgia Rules of Professional Conduct discusses fees as follows, to-wit:
“(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- the likelihood that the acceptance of the
particular employment will preclude other employment by the lawyer;
- the fee customarily charged in the
locality for similar legal services;
- the amount involved and the results
- the time limitations imposed by the client or by the circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
- whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) (1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.
- Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the following:
(i) the outcome of the matter; and,
- if there is a recovery showing:
(A) the remittance to the client;
- the method of its determination;
- the amount of the attorney fee; and
- if the attorney’s fee is divided with another lawyer who is not a partner in or an associate of the lawyer’s firm or law office, the amount of fee received by each and the manner in which the division is determined.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
- any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
- a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
- the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.”
A couple of provisions to note. First, sub-Paragraph (b) states that the scope of legal representation is “preferably in writing.” There is not a requirement for it to be in writing. However, you will save yourself countless hours of time by specifically memorializing every attorney-client relationship. Second, sub-Paragraph (d)(1) prohibits a contingency fee arrangement in domestic relations matters in writing. However, this sub-Paragraph does not apply to the recovery of post-judgment balances due under support, alimony, or other financial orders because such contracts do not implicate the same policy concerns. See Formal Advisory Opinions 36 and 37.
- COMMUNICATIONS WITH ADVERSE PARTY
Rule 4.2(a) of the Georgia Rules of Professional Conduct states that with regard to communications with a person who is represented by another attorney,
“[a] lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.”
So, if you happen to see the opposing party at the grocery store, is it permissible to have a conversation about the Braves, the weather, or the upcoming presidential election, just as long as the conversation does not veer to the pending litigation? The simple answer is that it is permissible but it begs the question as to whether it should be done. An attorney should, at all times, avoid all appearances of impropriety. You do not want to participate in a hearing where an opposing party claims that you, in some way, attempted to discuss the case; in such a circumstance, it would typically consist of “he said, she said” testimony in which a trial court would base its decision. There is not reason to take the chance of being conflicted out of a case because you decided to have a pleasant conversation with the opposing party. Furthermore, the maximum penalty for a violation of Rule 4.2(a) is disbarment! At the very least, you should contact your opposing counsel to let him/her know about the chance encounter, providing details as to what transpired.
Another event that is occurring more frequently is the opposing party, although represented by legal counsel who may e-mail you directly, sometimes with his/her attorney copied. This seems to occur more frequently when the opposing party is trying to submit information that you have requested. If you receive an e-mail (or other correspondence) from the opposing party and his/her attorney is not copied, you should immediately inform his/her attorney of such communication and provide the attorney with a copy of the e-mail (or other correspondence). If the attorney is copied on the e-mail, you should respond to the attorney, directly, requesting that his/her client refrain from communicating with you.
What about circumstance when a party is not represented? Well, there is a provision in the Rules for that as well. Rule 4.3 of the Georgia Rules of Professional Conduct states, in pertinent part, in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
“(a) state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding; and
(b) give advice other than the advice to secure counsel, if a lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of a client.”
For example, if you represent a wife in a divorce action, you cannot imply that you are “looking out” for the husband’s interests as well. At the outset of such communications, whether oral or in writing, you need to identify your client and state that the unrepresented party’s interests are disparate to those of the client. Again, the maximum penalty for a violation of Rule 4.2(a) is disbarment!