Client-Lawyer Relationship - Duty of Competence Flashcards
MR 1.1 - Competent Representation
The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comments:
A) In many instances, the required proficiency is that of a general practitioner. Relevant factors include: relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, whether it is feasible to refer the matter to, or associate with, a lawyer of established competence in the field in question.
B) Prior training is not always necessary for new problems. A lawyer can provide adequate representation in a wholly novel field through necessary study, or association with an expert.
C) In an emergency a lawyer can give another legal advice when association or consultation for their expertise is impractical. However, limits to such advice do exist.
D) Agreement b/w Lawyer and client can limit the Lawyer’s responsibility of certain legal matters or facts.
E) Informed consent from a client is necessary to obtain outside legal information or assistance in a client’s case.
F) Obtaining legal information or assistance from within a firm requires the team of lawyers to convey their allocation of responsibility to the client.
G) Competence needs to be maintained.
MR 8.1 - Integrity of the Law re: Applicants
Applicants to a Bar should not:
Knowingly make a false statement of material fact; or
Fail to disclose a misapprehension known; or
Fail to respond to a lawful demand for information from an admissions or disciplinary authority (Except information protected under Rule 1.6).
Comment:
A) This rule applies to both applicants and those testifying on an applicant’s behalf.
B) Federal (5th Amendment) and State Constitutions need not be breached to comply with the rules.
MR 8.2 - Integrity of the Law re: Judicial & Legal Officials
A lawyer shall not make a statement that is:
known to be false or with reckless disregard as to its truth regarding a judicial candidate’s qualifications; and or their behavior
A judicial candidate must comply with Code of Judicial Conduct.
MR 8.5 - Disciplinary Authority
A lawyer is subject to the disciplinary authority of the jurisdictions they are admitted to. The location of the conduct is irrelevant.
A lawyer is subject to the disciplinary authority of the jurisdiction they provide or offer legal services, even if they are not admitted to that locale.
Double jeopardy does not apply to attorney conduct. They can be subject to disciplinary action in a location where the conduct occurred and anywhere else they are barred into even if the conduct did not occur there.
MR 8.5 - Choice of Law
(1) For conduct in connection with a matter pending before a tribunal:
The rules of professional conduct are determined by the rules of the jurisdiction in which the tribunal sits. Unless the rules of the tribunal provide otherwise.
(2) For any other conduct:
The rules of professional conduct are determined by the rules of jurisdiction in which the lawyer’s conduct occurred; or where the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.
Key Exception: A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.
Comments:
A) a lawyer may be subject to several different rules from several different jurisdictions.
B) When a conflict occurs between the rules (2) helps answer which rule to apply. I.e., the location which the predominant effect occurred has its rules applied.
C) A lawyers reasonable belief on which rules apply is taken at face value, even if they apply the wrong rule.
D) If two jurisdictions pursue action against a lawyer the MR seeks that they apply the same rule.
Docking - Ineffective Assistance Case
Docking was ineffective counsel when he: did not have the experience or competence to represent clients charged with two counts of aggravated kidnapping, a Class A felony; had no felony trial experience; had not previously handled a Class A or B felony, and had only been out of law school for a year.
On top of this Docking did not always communicate with his charge due to a lack of a Korean translator, nor did he associate with a Korean-speaking attorney with expertise in the area.
Concurrence: Association with another attorney was not necessary, but being able to effectively communicate was.
Lopez - Elements of a legal malpractice action
(1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney;
(2) a negligent act or omission constituting a breach of that duty;
(3) proximate cause;
and (4) damages.
Note: In a legal malpractice action, ordinary negligence principles apply.
