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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Arkansas Legal Ethics

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of Arkansas Rule

1.2:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

1.2:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

1.2:200   Creating the Client-Lawyer Relationship

1.2:210      Formation of Client-Lawyer Relationship

See 1.1:320.

1.2:220      Lawyer's Duties to Prospective Client

Arkansas has no case law or authority on this topic.

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

See 1.16:200.

1.2:240      Client-Lawyer Agreements

See 1.1:380.

1.2:250      Lawyer's Duties to Client in General

See 1.1:300.

1.2:260      Client's Duties to Lawyer

See 1.4:200.

1.2:270      Termination of Lawyer's Authority

See 1.16:210.

1.2:300   Authority to Make Decisions or Act for Client

1.2:310      Allocating Authority to Decide Between Client and Lawyer

The essence of AR Rule 1.2(a) is that the client should decide the objectives of representation, issues involving substantial matters, issues of particular concern to the individual client, and the ultimate resolution of the representation.

1.2:320      Authority Reserved to Client

Without an express grant of authority by the client, the attorney can not alter the terms of a contract, grant an extension of time under the contract, waive a forfeiture, or act beyond the scope of his actual or apparent authority. Ashworth v. Hankins, 248 Ark. 567, 452 S.W.2d 838 (1970).

1.2:330      Authority Reserved to Lawyer

As to procedural matters, the attorney's contract of employment constitutes sufficient authority for him to take the procedural steps that he deems necessary and proper to pursue or defend the claim. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). The attorney's authority to act outside procedural bounds is controlled by the facts of each case. Rowland v. Worthen Bank & Trust Co., 13 Ark. App. 139, 680 S.W.2d 726 (1984). For example, although an attorney has no implied authority to enter into a compromise agreement of a dispute, when the client gives the attorney specific authority to enter into a compromise, such an agreement is valid and binding on the client. Veasey v. Joshlin, 257 Ark. 422, 516 S.W.2d 596 (1974).

An attorney who directs his client to disregard a court order may be held in contempt. Davis v. Goodson, 276 Ark. 337, 635 S.W.2d 226 (1982). The attorney may, however, challenge the order if done openly and in good faith.

For a discussion of ethically advising a client in bankruptcy matters, see Robert Laurence, In re Holt and the Re-making of Arkansas Exemption Law: Commentary after the Rout, 43 ARK. L. REV. 235, 243-247 (1990); J. Thomas Hardin, Conversion of Nonexempt Property to Exempt Property on the Eve of Bankruptcy in Arkansas, 10 U. ARK. LITTLE ROCK L.J. 719, 746-752 (1988). See generally Richard K. Burke, "Truth in Lawyering": An Essay on Lying and Deceit in the Practice of the law, 38 ARK. L. REV. 1 (1984).

1.2:340      Lawyer's Authority to Act for Client

The rules of agency apply to the relationship of attorney and client. Henry v. Gaines-Derden Enterprises, Inc., 314 Ark. 542, 863 S.W. 2d 828 (1993). In the absence of fraud, the client is bound by the acts or omissions of the attorney acting within the scope of his authority, whether express or implied, apparent or ostensible. Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S. W. 2d 278 (1988). Likewise, a client is bound by the actions of the attorney in matters in which the attorney is the spokesman for the client. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992) (attorney agreed that blood test would be admissible in evidence). The authority of the attorney to bind the client is typically a question of fact. Henry v. Gaines-Derden Enterprises, Inc., 314 Ark. 542, 863 S.W. 2d 828 (1993) (issue as to periodic payments made to attorney).

The negligent acts of the attorney are treated as the negligent act of the client. Self v. Self, 319 Ark. 632, 893 S.W. 2d 775 (1995) (attorney's failure to challenge voidable divorce decree barred client's challenge 24 years later). The client is bound by the failure of the attorney to file pleadings or take a timely appeal. For example, Allen v. Routon, 57 Ark. App. 137, 943 S.W. 2d 605 (1997) (attorney's blatant refusal to comply with appellate rules was “a flagrant abuse of the trust that her clients have shown her”). Springdale Memorial Hospital v. Director of Labor, 34 Ark. App. 266, 809 S.W.2d 828 (1991); Meisch v. Brady, 270 Ark. 652, 607 S.W. 2d 112 (Ark. App. 1980) (failure of attorney to file an answer). The client's remedy may lie in a malpractice action against the attorney. Florence v. Taylor, 325 Ark. 445, 928 S.W. 2d 330 (1996) (action dismissed with prejudice for failure to appeal on two occasions for trial; “petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent,”quoting Link v. Wabash R.R. Co., 370 U.S. 626 (1962).

If the attorney engages in acts that are injurious to a third party, the client may be liable to that third party under the rules of agency. Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988) (creditor's attorney allegedly engaged in abuse of process in collecting judgment).

In some instances the special relationship between the attorney and the client overrides the general rules of agency. Although an agent is not usually personally liable for acts taken on behalf of the principal, an attorney who requests services from a court reporter for a client is personally liable. McCullough v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991). The attorney retains the option of informing the reporter initially that only the client will be responsible for the charges.

One significant exception to the general rule binding the client is in the matter of belated criminal appeals. If the attorney files a tardy appeal, the appellate court will hear the case, rather than require the criminal defendant to seek a new trial or other relief based on ineffective assistance of counsel. But the Court will also notify the Committee on Professional Conduct of the attorney's error. See Per Curiam of February 5, 1979, 265 Ark. 964.

1.2:350      Lawyer's Knowledge Attributed to Client

Arkansas has no case law or authority on this topic.

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

Arkansas has no case law or authority on this topic.

1.2:370      Appearance Before a Tribunal

An attorney who appears in court is presumed to represent the client. Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979) (answer filed by attorney). The law does not definitively clarify whether an opposing party has standing to challenge the authority of the attorney. Potter v. First National Bank, 292 Ark. 74, 728 S.W.2d 167 (1987) (ward authorized minister to hire a lawyer to represent the ward's interests).

1.2:380      Authority of Government Lawyer

Arkansas has no case law or authority on this topic.

1.2:400   Lawyer's Moral Autonomy

See 1.2:300.

1.2:500   Limiting the Scope of Representation

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

See 1.2:300.

1.2:600   Prohibited Assistance

1.2:610      Counseling Illegal Conduct

See 1.6:370.

1.2:620      Assisting Client Fraud

See 1.6:370.

1.2:630      Counseling About Indeterminate or Uncertain Law

Arkansas has no case law or authority on this topic.

1.2:700   Warning Client of Limitations on Representation

Arkansas has no case law or authority on this topic.

1.2:800   Identifying to Whom a Lawyer Owes Duties

1.2:810      Prospective Clients [see 1.2:220]

Arkansas has no case law or authority on this topic.

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

Arkansas has no case law or authority on this topic.

1.2:830      Representing an Entity [see also 1.13:200]

Arkansas has no case law or authority on this topic.

1.2:840      Representing a Fiduciary [see also 1.13:520]

Arkansas has no case law or authority on this topic.

1.2:850      Class Action Clients

Arkansas has no case law or authority on this topic.