Core Duties Owed to
Client
Legal Knowledge
Rule 1.1
Competence
A lawyer shall
provide
competent
representation
to a client.
Competent
representation
requires the
legal
knoweldge,
skill,
thoroughness,
and prepartion
reasonably
necessary for
representation.
Satisfactory Knoweldge Factors R 1.1
CMT 1
Maintaining
Knowledge
CMT 8
Overcoming Lack
of Knoweldge
with Increased
Preparation
- Relative complexity & specialized
nature of matter
- Lawyer's general experinc.
Must keep abreast
- Lawyer training/exper in certain field of chagnges in law
-Preparation required
and practifce area
-Feasible to give to another lawyer
(SEE CMT 6.)
Thoroughness & Preparation
Factors for how much
enough? CMT 5
Ten Core Skills
1. Problem Solving
2. Legal Analysis
3. Legal Research
4. Oral/Written
Commnc
5. Factual
Investigation
6. Counseling
7. Negotiation
8. Ligitation/ADR
9. Org & MGMT of
work
10. Recognition &
resolution of ethical
dilemmas
- Permissible.
Can either
research on own
or consult with
another attorney.
-HOWEVER; do
not run amuck of
a Rule 1.5
violation for
going outside
benefit to client.
Four Core Values
1. Commitment to
Maintaining
Competence
2. Promotion of
Justice
3. Improment of
Profession and Law
4. Advance
Knowledge and
Improve Skills
Lesser Prep via Limiting
Scope CMT 5.
Via rule 1.2(c) a lawyer may
If using other
-What is at stake
limit the scope of the
attorney, must be
-Analysis of factual & legal
representation and, thus, the
dilligent in
issues
level of prepration and
making sure
-Methods of other competent
thourhoughness necessary
supervision is
practicioners
adequate
Rule 1.3
Diligence
Zeal CMT 1.
Procrastiation CMT 3.
-Lawyer must act with
"commitment and dedication
and w/ zeal in advocacy;
A lawyer shall act with
reasonable dilligence
and promptness in
representing a client
HOWEVER, this is not a
mandate for relentless pursuit
or 'scortched earth'
"Even when the client's
interests are not affected in
substance, unreasonable delay
can cause a client needless
anxiety and undermine
confidence in trustworthiness.
Rule 1.4
Communication
Criminal Competence
- 6th Am. Ineffecitve
Assistance of Counsel
Strickland v. Washington- Two
prong test:
(1) Were lawyer's errors so
serious that s/he "was not
functioning as the 'counsel'
guaranteed byt the 6th Am"; AND
(2) Defendant must show that
there is a reasonable probability
that, but for counsel's
unprofessional errors, the result
of the proceeding would have
been diffeernt
Immigration cases: Paddilla
Expansion. Must know
immigration consequeces
ABA Standards - 1) Get relevant
facts from accused ASAP, 2)Keep
informed of facts, 3) keep
informed of rights, 4) conduct
prompt investigation
Conclude Matters CMT 5
Unless formal termination via Rule
1.16, a lawyer should carry through to
conclusion of all matters underaken.
NOTE: If client is long-term; this may
be insufficient -> client
expects representation
Automatically Required Communications
(4) promptly comply with client
(a) A lawyer shall:
requests for information;
(1) promptly inform the client of any
(5) consult when lawyer knows that
decision which requires informed
expected assistance is not permitted
consent
by RPC or other law
(2) reasonably consult with the
(b) A lawyer shall explain a matter to the
client about the means by which the
extent reasonably necessary to
client's objectives are to be
permit the client to make informed
accomplished
decisions regarding rep.
(3) keep client reasonably
informed
Witholding Information.
Allowed if lawyer reasonably believes client would
"react imprudently to an immediate communication".
Justifed as in client's temporary interests.
(a)(1) - Informed consent; TRIGGERED by ANY
rule which requires client input/informed consent.
However, this may not be used as justification for
withoholding for lawyer's or 3rd paty interest
Rule 2.1
Advisor/Candor
In rep a client, a lawyer
shall exercise
independent
professional judgment
AND render candid
advice.
In rendering advice, may
refer not only to law but
moral, economic, social
and poilitcal factors.
(a)(3) Information concerning ongoing matter;
must reasonably inform the client of significant
developments (CMT 3)
(a)(5) MUST communicate with client when
lawyer knows representation will be
illegal/unlawful
Client-Requested Communications
(a)(4) Must promptly comply; client owns the
information.
CMT 4: If prompt response not feasible, then
lawyer must tell client when it will be ready
Although decisions of
stragety are left to attorney
per R 1.2, he must STILL
consult client about the
implications of the
"means"
CMT 5 - BUT no duty for
strategy to be discussed in
detail -- only reaonsably
enough that client
understands the matter
" to participate
intelligently" in decisions
about representation.
IMPLIED HONESTY [Fiduciary Duty]
R3P § 169(3) -> Lawyer is a fiduciary,
R 3.3 (tribunals) & R 4.1 (third parties) do not explicitly forbid
lying to clients; but 8.4 might bar "dishonesty"
NOTE: There has never been a prosecution of this,
but there COULD BE.
Argue indpendent
professional
judgment is mandated
by shall and
VIOLATED by a conflict
of interest.
Consultation of Means
and Explanation of
Matter (a)(2) & (b)
However, R 1.4 requires disclosure of all information relevant
to the ligitagion; cannot lie here.
Argue candid advice is
violated when lawyer
makes a
misrepresentation or
untruthful statement
A lie MIGHT BE an 8.4(c) violation: Even if not fraudulent
(argue that the jurisdiction's definition will control), it is STILL a
deciet or misrepresentation
Lying to client can open liability as a breach of
fiduciary duty OR fraud. Note. Fiduciary breach tends
to have a more favorable statute of limitation for the
plaintiff.
Primarily: Law involves unpleseant facts and the
lawyer must commuincate these to the client
regardless of the client's feelings. Cmt 1
Rule 1.2
See also: Formation Chart
1.2(a) -> Client sets the SCOPE.
Client-Controled Strategy Decisions
Objectives are Clients; MEANS are the
attorney's. Decisions of strategy and tactics
are solely the lawyer's purview.
Only a few "strategic" decisions are actually
considered objectives.
Text
Civil Cases.
-Settling [Note: some states say that
lawyer has the implied authority to
settle]
Criminal Cases
"after consultation, the lawyer must abide
by client decisio . . .
-Plead guilty
-Waiver of jury
-Decision to testify
Must consult about means. Triggers 1.5.
1.2(c) Limiting the Scope of Representation.
A lawyer may limit the scope of repre. if the
limitation is (1) reasonable under circ; AND
(2) client gives INFORMED CONSENT.
Limits for malpractice ALWAYS
requires indepdnent counsel fo
another lawyer.
May ALWAYS contract for a higher
standard than the competence
demanded by Rule 1.3
Are limits contemplated
by rules?
CMT 6. Limited
representation is
appropriate when teh
client has limited
objectives for the
representation. (ie defend
insurer OR give quick
telephone advice)
CMT 6: This could also
mean lawyer will not
use certain tactics (ie
client thinks some tactics
are too expensive or
wrong)
Not limited to these; just
easy pickings
Fiduciary Duties
Rp3 § 49, cmt b
- Safeguarding client's
confidences & property
- Avoiding conflicts of
interest
- Adequately informing client
- Following instructions of
Client
- Not employing powers
arising fromt the
client-lawyer relationship
adversley to the client
Fiduciary Breach Claim
But for the lawyer's fiduciary breach,
the conduct would not have
occurred.
This is a big one for conflicts
of interests via confidentiality
Also will have tension with
anytime you have to report
things to the authorities.
Is it " Reasonable"
Informed Consent.
CMT 7: "Rule provides
substantial latitude to
limit representation
scope if reasonabe.
Rule 1.0 Def:
Agreement to a
proposed course of
conduct after lawyer
has communicated
adequate
information and
explanation
regarding the
material risks and
reasonably
avaliabel
alternatives.
But -> must still be
COMPETENT, see
Rule 1.1. Cannot agree
to limit to a phone call if
the person would just
give inadequate advice.
AND -> must comply
with 1.8 financial
contract arrangement.
May need to
say get indpt.
advice to limit
CMT 6: Often, this
may require the
lawyer to advise the
client to have
independent
counsel.