Chapter 5 - Control and Communication Flashcards
Rule 1.1 Competence
A lawyer shall provide competent representation to a client
Competent representation requires
- the legal knowledge,
- skill,
- thoroughness and
- preparation
- reasonably necessary
- for the representation.
To maintain the requisite knowledge and skill, a lawyer should:
- keep abreast of changes in the law and its practice, (including the benefits and risks associated with relevant technology)
- engage in continuing study and education and
- comply with all continuing legal education requirements to which the lawyer is subject.
Model Rule 1.3
Diligence
A lawyer shall act with ____ and _____ in representing a client.
- reasonable diligence
* promptness
Model Rule 1.3
Diligence
Often a lawyer can simply get a great result for a client by _____ opposing counsel, by knowing more about the ___ then anybody else in the room.
- outworking
* case and the law
Model Rule 1.2
Scope of Representation
In civil cases, client decides (2)
- whether to settle and
- for how much.
(Other civil decisions are probably “means” to achieve those objectives. See Comment 1.)
Model Rule 1.2
Scope of Representation
In criminal cases, client decides:
The plea;
Whether to waive a jury trial;
Whether client will testify.
Model Rule 1.2
Scope of Representation
In general
abide by client’s decisions about GOALS; consult with client about the MEANS
Agency: What are the two types of authority?
1) Actual authority:
Implied authority (actual authority circumstantially proved)
2) Apparent authority:
Principal ACTS like agent has authority
Party REASONABLY BELIEVES agent has authority
When Representation Goes Awry
What is NOT necessary to constitute a professional misconduct violation?
A finding of bad faith or corrupt motive
1.4 Advise & Consent
Communications to Clients:
M&F3rd (p. 98) describes how many events that trigger a lawyer’s duty to communicate with clients?
8
1.4 Advise & Consent
Communications to Clients:
Lawyer must communicate and sometimes obtain client consent before acting on client’s behalf, especially to establish the following:
1) FEES, SCOPE of representation, client OBJECTIVES or change of objectives (see engagement letters).
2) WAIVER of any fiduciary obligations.
3) To EXPLAIN any matter to the extent reasonably necessary to obtain the client’s INFORMED CONSENT.
4) To make decisions about MEANS to accomplish objectives.
5) UPDATES (e.g. lawyer took money out of trust account).
6) When lawyer CAN’T give assistance (because doing so would violate one or more Model Rules or other law)
7) When lawyer makes a MISTAKE!
8) When client REQUESTS information.
FSO, W, E, M, U, C, M, R
Advise & Consent
Communications to Clients:
Multiple Clients/Dual Representation:
(3)
Appropriate conflict of interest waivers must be in place to represent two or more clients.
Lawyer owes same duties to BOTH clients regardless of who pays the bill.
Lawyer must COMMUNICATE with BOTH clients, owes all super fiduciary duties to BOTH.
Representing Entities
Corporations, Organizations
Corporations, Entities, Organizations as Clients
Model Rule 1.13(f)
In dealing with an organization’s [constituents] … a lawyer shall explain
the identity of the client when the lawyer knows … that the organization’s interests are adverse to those of the constitutents.
Representing Entities
Corporations, Organizations
Corporations, Entities, Organizations as Clients
Model Rule 1.13(g)
A lawyer representing an organization may also represent
any of its [constituents] subject to the provisions of Rule 1.7.
Representing Entities
Corporations, Organizations
Corporations, Entities, Organizations as Clients
If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by _________ other than the individual who is to be represented, or by the shareholders.
• an appropriate official of the organization
Accidental Clients: What kind of clients are by far the largest category of “accidental” representation?
Prospective clients
Ineffective Assistance of Counsel
Elements (Strickland v. Washington (Sct. 1984))
To justify reversal in a criminal case, the defendant must show what two things?
Lawyer’s acts or omissions were outside the wide range of professional competence;
Actual prejudice
Model Rule 1.4(b)
Communication
A lawyer shall explain a matter to the _____ to permit the client to make ______ regarding the representation.
- extent reasonably necessary
* informed decisions
Model Rule 1.0(e)
Terminology
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the ___ ___ of and ____ ____ _____ to the proposed course of conduct.
- material risks
* reasonably available alternatives
Model Rule 1.4
Communication
A lawyer shall do what 5 things?
promptly tell the client about anything requiring INFORMED CONSENT under these rules . .
CONSULT with the client about the means . . .
keep client INFORMED about the status of the matter;
promptly COMPLY with requests for information; and
tell the client that the lawyer CANNOT offer assistance not permitted by the Rules or other law.
IC, C, I, C, C
Model Rule 2.1
Comment 5
When a matter is likely to involve litigation, it __ be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation …
MAY
RLGL §49
In addition to the other possible bases of civil liability . . . a lawyer is ____ ____ to a client if the lawyer breaches a fiduciary duty to the client . . . and if that failure is a legal cause of injury .
civilly liable
Model Rules & Malpractice
Although violations of [the Rules of Professional Conduct] do not create a private cause of action for a client, the rules provide what in determining the fiduciary duty owed to a client by an attorney?
guidance
Model Rules Scope - paragraph 20:
Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached …
Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be of breach of the applicable standard of conduct.
____
