Competence - June 9 Flashcards
Under the Model Rules of Professional Conduct (MRPC), does a lawyer have a duty to provide competent representation to every client? (Q)
Yes. Under the MRPC, a lawyer has a duty to provide competent representation to every client. Competent representation is defined as representation employing the knowledge, skill, thoroughness, and preparation that are reasonably necessary to meet the client’s needs.
What factors do the MRPC identify as relevant in determining whether a lawyer has sufficient knowledge and skill to provide competent representation? (Q)
Under the MRPC, relevant factors to consider in assessing a lawyer’s knowledge and skill include:
the complexity and specialized nature of the matter,
the lawyer’s general training and experience in the relevant field of law,
the preparation the lawyer can give the matter, and
the lawyer’s ability to consult with a more experienced or competent lawyer.
What factors do the MRPC identify as relevant in determining whether a lawyer has deployed sufficient thoroughness and preparation to provide competent representation? (Q)
Under the MRPC, adequate thoroughness and preparation require that a lawyer must, at a minimum:
assess and analyze the factual and legal elements of the matter using methods used by other competent lawyers and
prepare adequately for all aspects of the representation.
Is there a set standard for the amount of preparation a lawyer must do in a matter to provide competent representation? (Q)
No. There is no set standard for the amount of preparation a lawyer must do in a matter to provide competent representation. Rather, the necessary level of preparation will vary by case and client (e.g., a major litigation may require more extensive preparation than a routine, small matter). In addition, an agreement between a lawyer and a client that limits the scope of the representation might also determine how much work the lawyer must do on the matter.
To maintain the level of knowledge and skill necessary for competent representation, must a lawyer keep up with changes in the law and its practice? (Q)
Yes. To maintain the knowledge and skill necessary for competent representation, a lawyer must keep up with changes in the law and its practice. Among other things, this requires the lawyer to:
comply with jurisdictional requirements for continuing legal education,
engage in other continued study as necessary to keep up with developments in the law that are relevant to the lawyer’s practice, and
keep up with technological developments and be aware of both the benefits and risks arising from technology relevant to the lawyer’s practice.
A lawyer advised a business in employment-law matters. The lawyer assisted the business in terminating an executive for embezzlement. The termination agreement, which the lawyer drafted and the parties signed, included a provision requiring both parties to refrain from making any public statements about the executive’s departure. The lawyer knew that the business frequently tweeted about personnel developments. However, the lawyer did not know that a Twitter feed could be publicly accessible and thought that Twitter was for in-house use only. Thus, the lawyer did not advise the business not to tweet about the settlement. After the executive left, the business publicly tweeted a photograph of the executive with the caption, “Goodbye and good riddance.”
By failing to warn the business about tweeting, did the lawyer violate her duty of competent representation? (Q)
Yes. The lawyer violated her duty. Maintaining competence as a lawyer includes keeping up with relevant technology and its associated benefits and risks. A lawyer should consider how new and emerging technologies might create potential areas of concern for clients and other aspects of the lawyer’s practice. Specifically, social media platforms like Twitter present opportunities to spread confidential material. Lawyers should be aware of these risks and advise clients to avoid them.
Here, the lawyer knew that the business tweeted about leadership changes, but she lacked a basic understanding of Twitter, including that it could be publicly accessed. The lawyer should have explained the confidentiality provision in the termination agreement and advised the business that tweeting about the termination might violate the agreement. Thus, the lawyer’s failure to do so was an ethical violation.
Before a lawyer takes on a client or a matter, must the lawyer assess her own ability to provide competent representation? (Q)
Yes. Before taking on a client or a matter, a lawyer must assess her own ability to provide competent representation. The lawyer may accept the representation only if she is competent or can become competent through reasonable preparation.
If a lawyer is not familiar with a particular factual context or a particular area of law, does this necessarily preclude the lawyer from undertaking a representation? (Q)
No. A lack of familiarity with a factual context or an area of law does not automatically preclude a lawyer from undertaking a representation. It is true that some situations may require the lawyer to have previous experience or expertise to be competent. In many cases, however, competent representation may be provided by a lawyer who does not have previous experience in similar matters, so long as the lawyer possesses applicable legal skills (e.g., identifying legal issues, legal drafting, and analyzing precedent) and is willing to undertake the study needed to learn new material. An inexperienced lawyer may also affiliate with a lawyer who is already competent to handle the matter.
If a lawyer can achieve the necessary level of knowledge to provide competent representation, then the lawyer may agree to take on the matter. If not, then the lawyer should decline the representation.
A lawyer who had never handled a criminal case was appointed by a court to represent a criminal defendant pro bono. The lawyer had practiced in other areas of law for five years, and she possessed the research, writing, and analytical skills needed for the practice of law.
Is it possible for the lawyer to provide competent representation in the criminal-defense matter? (Q)
Yes. It is possible for the lawyer to provide competent representation. Competent representation requires the knowledge, skill, thoroughness, and preparation reasonably necessary to represent a client. Relevant factors in assessing competence include:
the matter’s complexity,
the lawyer’s training and experience,
the preparation the lawyer can give the matter, and
the lawyer’s ability to consult with a more experienced lawyer.
In many matters, a lawyer’s general skills (e.g., analyzing precedent and evaluating evidence) provide a basis for competence, and the lawyer will be able to study new material to become sufficiently skilled for a particular representation.
Here, even without criminal-defense experience, the lawyer possessed general lawyering skills. Thus, the lawyer likely can learn enough to provide competent representation through study and preparation.
A lawyer graduated from law school and was admitted to the bar. Six months later, a woman asked the lawyer to draft a will on her behalf. The lawyer had never drafted a will, but the lawyer had access to authoritative reference materials that, properly utilized, would assist him in preparing a valid will. The lawyer’s legal research, reasoning, and analytical skills were sufficient for the practice of law.
May the lawyer take on the representation without violating his professional duties? (Q)
Yes. If the lawyer can achieve the requisite level of competence, he may undertake the representation. A lawyer’s competence refers to the lawyer’s body of skills and knowledge combined with the diligence and preparation required to handle a matter. A lawyer may accept a representation if the necessary level of competence can be achieved by reasonable preparation. In other words, if a new lawyer can combine his existing legal skill set and knowledge (e.g., conducting research, drafting, and identifying issues) with the preparation sufficient to accomplish the required tasks, the lawyer is considered competent.
Here, the new lawyer already had a base of legal skills, plus reference materials to which he could apply those skills. Thus, if the lawyer can build on these skills by studying and learning how to prepare a will, then he may agree to take on the representation.
In an emergency, may a lawyer provide legal assistance even if the lawyer is not competent in the relevant area of law? (Q)
Yes. In an emergency, a lawyer may give limited advice or assistance in a matter in which the lawyer does not possess competence, if involving another lawyer would be impractical. However, to protect the client from the possibility of bad advice, the lawyer should provide the least amount of assistance that is reasonably needed to respond to the emergency.
A lawyer had advised a client on trusts-and-estates matters for 10 years. The client called the lawyer late one evening to ask for urgent advice about the client’s arrest one hour earlier for driving while intoxicated (DWI). The lawyer had no criminal-law experience. The lawyer told the client that she had no expertise in criminal law or DWI claims, recommended that the client find a competent criminal-defense lawyer as soon as the client was able, and gave the client limited advice in response to the client’s immediate questions.
Was the lawyer permitted to provide this advice to the client? (Q)
Yes. The lawyer was permitted to provide this advice. In an emergency, if consultation with or referral to another lawyer would be impractical, a lawyer may advise or assist a client even if the lawyer is not competent to undertake the matter in question. The lawyer must limit the advice to just what is reasonably necessary in the circumstances in order to protect the client from poor or ill-considered advice.
Here, the client sought urgent advice after being arrested late at night. Although the lawyer had no experience with DWI claims, it was not practical for the lawyer to consult with, or refer the client to, another lawyer at that hour. The lawyer gave limited advice, was honest about her lack of experience, and advised the client to seek competent representation. Thus, the lawyer’s advice was permissible.
In affiliating with another lawyer to provide competent representation, should a lawyer obtain the client’s informed consent and discuss with the client how responsibility will be allocated among the lawyers? (Q)
Yes. In affiliating with another lawyer to provide competent representation, a lawyer should obtain the client’s informed consent and discuss with the client how responsibility for the representation will be allocated among the lawyers. This is especially important if the affiliated lawyers will provide services in other jurisdictions that might have different ethical rules from those that apply to the original lawyer.
In affiliating with another lawyer to provide competent representation, should a lawyer do so based on a reasonable belief that the additional lawyer will enhance the provision of competent representation to the client? (Q)
Yes. In affiliating with another lawyer to provide competent representation, a lawyer should reasonably believe that the additional lawyer will enhance the provision of competent representation to the client. Factors affecting the reasonableness of the affiliation may include:
the other lawyer’s education, reputation and experience;
the nature and scope of the work assigned to the other lawyer; and
the rules of professional conduct, including rules of confidentiality, that apply in the jurisdiction in which the additional lawyer will render services.
A client asked a lawyer to represent her in a complex business transaction. The lawyer had not previously worked on this type of transaction. The lawyer therefore contacted another lawyer in town who had experience in similar transactions to see if he would assist in the matter. The other lawyer agreed, and the first lawyer took on the representation without mentioning the association to the client. The other lawyer attended the first lawyer’s meeting with the client. The client was surprised to see another lawyer and asked why the other lawyer was at the meeting.
Did the first lawyer violate his ethical duties by associating with the other lawyer without first informing the client? (Q)
Yes. The first lawyer likely violated his ethical duties. A lawyer may associate with another lawyer who has experience in a particular area if the lawyer reasonably believes that the other lawyer’s services will contribute to the competent and ethical representation of the client. However, before a lawyer retains other lawyers outside the lawyer’s own firm to assist in providing legal services to a client, the lawyer should ordinarily obtain the client’s informed consent.
Here, the first lawyer’s proposed association was reasonable, because the other lawyer was skilled in representing clients in complex business transactions, and this skill would contribute to the representation of the woman. However, the first lawyer did not obtain the woman’s informed consent before retaining the other lawyer to assist with the representation. Thus, the lawyer likely violated his ethical duties.
