Also known as: independent legal counsels · independent counsel
Written by attorneys — see sources below.
An attorney retained to advise a party on a transaction or dispute without any conflict arising from representation of another party to the matter or from prior involvement in the representation.
Liam proposed financing Drake's sports academy in exchange for profits while still representing Drake on a team contract. Drake signed the financing papers without any separate lawyer reviewing them. The arrangement exposed Liam to discipline because Drake never received written advice about consulting independent legal counsel or a chance to do so.
A lawyer entered a business deal with a client without first advising the client in writing of the need to consult independent legal counsel. The client later claimed the transaction was unfair. The lawyer faced discipline for failing to provide the required written notice and opportunity to obtain separate counsel.
Barbara sent Karen a settlement package offering payment for a release of claims after the representation ended. The cover letter mentioned only that Karen might wish to seek advice and gave her three days to respond. Karen signed without counsel, leaving Barbara subject to discipline for failing to advise Karen in writing of the desirability of independent legal counsel or to allow reasonable time to obtain it.
An attorney missed a statute of limitations, paid the client personally to hide the error, and never told the client about a possible malpractice claim or the need for separate counsel. The attorney's concealment and failure to recommend independent legal counsel amounted to serious misconduct warranting discipline beyond simple negligence.
A lawyer proposed a fee agreement that created a conflict with an existing client. The client signed without receiving written notice of the right to seek independent legal counsel. The lawyer was disciplined for violating the requirement to advise the client in writing and allow time to obtain separate representation.
In July 1993 Vincent W. Foster, Jr., then Deputy White House Counsel, met with attorney James Hamilton of the firm Swidler & Berlin to seek legal representation concerning possible congressional or other investigations of the 1993 dismissal of employees from the White House Travel Office. During the two-hour meeting Hamilton took three pages of handwritten notes, one of the first entries of which was the word "Privileged." Nine days later Foster committed suicide. In December 1995 a federal grand jury at the request of the Office of the Independent Counsel issued subpoenas to Hamilton and Swidler & Berlin for Hamilton's handwritten notes of the meeting with Foster. Petitioners filed a motion to quash the subpoenas. After examining the notes in camera the District Court concluded they were protected by both the attorney-client privilege and the work-product privilege and denied enforcement. The Court of Appeals for the District of Columbia Circuit reversed. It recognized that most courts assume the privilege survives death but concluded that a balancing test should apply in the criminal context. The Court of Appeals also held that the notes were not protected by the work-product privilege. A dissenting judge would have affirmed the District Court's judgment protecting the notes under the attorney-client privilege. Petitioners sought review in the Supreme Court on both the attorney-client privilege and the work-product privilege. The Supreme Court granted certiorari in 1998.
An attorney settled a malpractice claim with a former client without advising the client in writing about consulting independent legal counsel. The former client later challenged the settlement. The attorney faced discipline for failing to give the required written notice and reasonable opportunity to seek separate counsel.
In 1976 appellees consisting of individual foster parents and the Organization of Foster Families for Equality and Reform filed a civil rights class action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. They acted on behalf of themselves and foster children who had resided in their homes for a year or more. They named as defendants various New York State and New York City child welfare officials. The suit sought declaratory and injunctive relief against the pre-removal procedures provided in state statutes and regulations. The District Court appointed independent counsel to represent the foster children to forestall conflicts. It also granted leave to natural mothers to intervene as defendants. The court certified a class of foster parents and children who had lived together for more than one year. A divided three-judge District Court held the existing pre-removal procedures constitutionally defective. It permanently enjoined their enforcement. Four appeals reached the Supreme Court from the New York City officials, New York State officials, independent counsel for the children, and intervening natural mothers. Under New York's foster care system most placements occur through voluntary written agreements. Natural parents and authorized agencies execute these agreements to transfer care and custody of the child to the agency. The agency then places the child in a licensed foster home under a contract allowing either party to terminate at will. Natural parents retain legal guardianship and an obligation to visit and plan for the child's future. Children may also enter foster care by court order following findings of abuse, neglect, or delinquency. When an agency decides to remove a child, state regulations require ten days' written notice to foster parents except in emergencies. Opportunities exist for conference and fair hearing. Additional procedures apply in New York City. Judicial review is available under § 392 after eighteen months. The record showed that the median duration of foster care in New York exceeded four years. Many children experienced multiple placements and limited contact with natural parents.
A lawyer entering a business transaction with a client must advise the client in writing of the desirability of seeking independent legal counsel and give the client a reasonable opportunity to do so. The same requirement applies when settling a malpractice claim with an unrepresented former client.
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…(1974) violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court appointed independent counsel for the foster children to forestall any possibility of conflict between their interests and the interests asserted by the foster parents. A group of natural mothers of children in…
…merit in a contention raised by appellant that the agreement should be declared void on the ground that she did not consult with independent legal counsel. To impose a per se requirement that parties entering a prenuptial agreement must obtain
…5, 1988, meeting, and because Sun had insufficient funds to retain counsel and was not informed that Barry would pay for independent counsel
…of a palimony agreement only when “the agreement has been reduced to writing and the parties have each had the benefit of independent counsel” -- and “irrespective of when an agreement to provide lifetime support may have been entered.” Id. at 89. The panel disagreed with the family court’s view that “the cause of action for…
No. Even sophisticated clients must receive written advice about independent counsel and a reasonable opportunity to obtain it. Business experience does not substitute for the required procedural safeguards.
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The lawyer is subject to discipline. The rule requires written advice of the desirability of independent counsel plus a reasonable opportunity to seek it. A vague suggestion or short deadline does not satisfy the obligation.
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Absence of independent counsel is a factor courts consider when assessing voluntariness. Some statutes treat lack of independent counsel, combined with inadequate notice or time, as grounds for finding the agreement unenforceable.
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No. The statute requires representation of the surrogate's own choice. A lawyer serving on the intended parents' gallery board creates a conflict that prevents the representation from qualifying as independent even if written notice of the right to separate counsel was given.
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