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.
Does a lawyer have a duty to act with reasonable diligence and promptness in representing a client? (Q)
Yes. In representing a client, a lawyer has a duty to act with reasonable diligence and promptness. Some important aspects of diligence and promptness include:
taking whatever lawful and ethical measures are necessary to accomplish the client’s goals, regardless of opposition, obstruction, or personal inconvenience to the lawyer;
acting with dedication, commitment, and zeal on the client’s behalf;
controlling the lawyer’s own workload to allow sufficient time for each matter;
avoiding procrastination and needless delay; and
following through to their conclusion all matters involved in a representation.
Does a lawyer’s duty of diligence and promptness require a lawyer to seek every possible advantage, even to the point of rudeness or discourtesy? (Q)
No. A lawyer’s duty of diligence and promptness does not mean that a lawyer must seek every possible advantage or use offensive tactics to advance the client’s cause. The lawyer may use her professional discretion to decide how to pursue the matter while still treating everyone involved with courtesy and respect.
Does a lawyer’s duty of diligence and promptness prevent a lawyer from agreeing to a reasonable postponement or extension of a deadline? (Q)
No. A lawyer’s duty of diligence and promptness does not prevent a lawyer from agreeing to a reasonable postponement or extension of a deadline. However, the lawyer may do so only if the agreement will not prejudice the client.
If there is doubt as to whether a client-lawyer relationship continues to exist, e.g., whether all matters in the scope of the representation have been concluded, should the lawyer clarify matters so that both the client and the lawyer understand the state of the relationship? (Q)
Yes. If there is doubt as to whether a client-lawyer relationship continues to exist, the lawyer should clarify matters so that both the client and the lawyer understand the state of the relationship. In general, unless a client-lawyer relationship is terminated, the lawyer should carry through to conclusion all matters that the lawyer has undertaken for the client. However, if a lawyer has served a client over a substantial period of time in a variety of matters, the client may assume that the lawyer will continue to serve the client unless the lawyer gives notice of withdrawal from the representation. The lawyer should clarify any doubts about the state of the relationship, preferably in writing, so the client will not mistakenly believe that the lawyer is handling a matter when in fact the lawyer is not.
If a lawyer is a sole practitioner, might the lawyer’s duty of diligence require the lawyer to prepare a plan for another lawyer to review the sole practitioner’s client files and notify clients of the sole practitioner’s death or disability? (Q)
Yes. A lawyer’s duty of diligence might require a sole practitioner to establish a plan under which another competent lawyer, in the event of the sole practitioner’s death or disability, will:
review the sole practitioner’s client files,
notify each client of the sole practitioner’s death or disability, and
decide whether there is a need for any immediate action to protect the client’s interests.
This process is designed to fulfill the duty of diligence by making sure that no client’s interests are compromised by delay or inattention.
A lawyer was a sole practitioner. The lawyer learned that he had terminal cancer and had only a few weeks left to live. The lawyer immediately called his secretary, who was not a lawyer, and asked her to assemble his client files and notify each client of the lawyer’s impending death.
Did this activity likely comply with the lawyer’s duty of diligence? (Q)
No. This likely did not comply with the duty of diligence. In anticipation of death or disability, the duty of diligence may require a sole practitioner to prepare a plan designating another competent lawyer to review client files, notify clients of the death or disability, and determine if there is any need for immediate protective action. This process is designed to fulfill the duty of diligence by making sure that no client’s interests are compromised by delay or inattention.
Here, the lawyer was a sole practitioner who learned he had terminal cancer. Though the lawyer asked his secretary to notify his clients, the lawyer made no provision for a lawyer to evaluate the need for immediate protective action on behalf of any client. Instead, the clients were being left to find new counsel and obtain this advice on their own. Thus, the lawyer likely has not fulfilled his duty of diligence.
A lawyer can solve a competence problem in any of the following ways, except which? (B)
A) Associating with a competent attorney
B) Charging a reduced fee - correct
C) Studying the law
Joelle represented Simon in a drunk driving trial. Simon was convicted, and his license was suspended. After the verdict, Simon was very emotional and did not want to talk to Joelle. Joelle is unsure as to whether Simon wants to file an appeal, but she does not want to continue working with Simon, so she sends him his final bill and moves on.
Were Joelle’s actions proper? (B)
No, because she failed to consult with Simon about an appeal
As part of the duty of diligence, a lawyer generally must see each matter through to completion (unless, of course, the lawyer is fired or is required or permitted to withdraw). If there’s doubt about whether the lawyer-client relationship has ended, the lawyer should clarify it, preferably in writing. An appeal was possible in Simon’s case, so Joelle should have brought this to Simon’s attention and clarified whether he wanted her to keep working on his behalf.
Jamie violates a rule of professional conduct while representing Hunter. Hunter suffers loss due to Jamie’s conduct in the case and sues Jamie for legal malpractice.
How will Jamie’s ethics violation impact the malpractice case? (B)
It is relevant evidence that Jamie’s conduct was below the appropriate standard of care
The rules of professional conduct are for disciplinary purposes. They aren’t designed to be a basis for civil liability, and a lawyer’s breach of an ethics rule doesn’t automatically or presumptively mean that the lawyer has committed malpractice. Courts generally do, however, regard an ethics violation as relevant evidence that the lawyer’s conduct was below the appropriate standard of care.
Yvonne hired Luther to draft a will that left a substantial financial sum to her best friend, Bonnie. Unfortunately, Luther was not aware that state law required two witnesses, and Yvonne signed her will in front of only one witness. When Yvonne died, the will was held invalid and Bonnie received nothing.
Does Bonnie have a malpractice claim against Luther? (B)
Yes, because Bonnie was intended to benefit from Luther’s services
When it comes to malpractice claims, a lawyer generally doesn’t owe a legal duty to nonclients. However, a lawyer may owe a duty to nonclients in certain circumstances, including when the nonclient was intended to benefit from the lawyer’s services. Because Bonnie was clearly intended to benefit from Luther’s services, and because the potential for harm to Bonnie should have been obvious, Bonnie has a good malpractice claim against Luther.
Riley tells her client that she is a specialist in toxic tort cases, even though she has only handled three other cases of this type. Riley then makes a serious error in the client’s toxic tort case.
If the client sues Riley for negligence, what standard of care will be applied to Riley? (B)
The competence and diligence normally exercised by lawyers who specialize in toxic tort cases
Generally, the standard of care for an attorney is the competence and diligence normally exercised by attorneys in similar circumstances. However, if an attorney represents to a client that she has greater competence (e.g., is a specialist) or will exercise greater diligence than that normally demonstrated by attorneys undertaking similar matters, she is held to that higher standard.
Bruce hires Aubrey to file a medical malpractice lawsuit against a doctor, but Aubrey misses the statute of limitations and Bruce’s claim is barred. Bruce’s claim against the doctor was baseless, but Aubrey had no reason to know that when she missed the statute of limitations.
Is Bruce likely to prevail in a malpractice claim against Aubrey? (B)
No.
As in any tort case, the plaintiff in a professional negligence case has to prove that the defendant’s conduct was the legal cause of the plaintiff’s injury. That is, the injury would not have happened but for the defendant’s negligence, and furthermore, that it’s fair to hold the defendant liable for unexpected injuries (or for expected injuries that happen in unexpected ways). This means that to have a good malpractice claim, Bruce has to be able to show that he had a good claim in the first place. Since his claim was baseless, his malpractice claim will not prevail.
Fatima’s client Brian told Fatima in confidence that he planned to open a massive new shopping complex at a particular location. Without telling Brian, Fatima quickly bought land one block away from the location and built a parking garage to serve the upcoming shopping complex. Brian had no plans to build a parking garage, so Fatima’s garage did not harm him.
Does Brian have a viable civil suit against Fatima? (B)
Yes, because Fatima used Brian’s confidential information for her own pecuniary gain.
The rules of professional conduct prohibit a lawyer from using their current, prospective, or former client’s confidential information against them. That disciplinary rule applies only when the lawyer’s misuse of information disadvantages the person. However, a lawyer who uses the confidential information for her own pecuniary gain other than in the practice of law may be subject to civil liability—she may have to account to the client, former client, or prospective client for her profits even if the person is not harmed. Even though the garage did not harm Brian, Fatima must disgorge the garage profits to Brian because she used Brian’s confidential information to enrich herself outside of the practice of law.
Partners A, B, and C practice law together in the ABC Law Firm, which is set up as a general partnership. Partner A commits legal malpractice.
What is the extent of B’s and C’s personal liability for A’s malpractice? (B)
They are jointly and severally liable for the full amount of the judgment
Under partnership law, each partner in a general partnership is jointly and severally liable for the obligations of the partnership, including the torts of another partner or employee committed in the ordinary course of the partnership business. Joint and several liability means that any partner may be held personally liable for the entire judgment even if they had nothing to do with the negligent act. Thus, (C) is wrong and (B) is correct.
Kristen misses a statute of limitations in Howard’s case, and Howard gets very upset. Kristen wants to resolve the matter quickly and quietly, so they meet in her office and she gives Howard a written offer for $50,000 in exchange for his promise not to sue her for missing the statute of limitations. The offer letter advises Howard to seek the advice of an independent lawyer about the settlement. Kristen tells Howard that the offer is only valid for 24 hours. Howard accepts the offer on the spot.
Is Kristen subject to discipline? (B)
Yes, because Kristen said the offer was only valid for 24 hours.
The law favors the amicable settlement of claims. Thus, a lawyer may settle a malpractice claim or potential claim made by an unrepresented client or a former client, but only if the lawyer first advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a reasonable chance to obtain such advice. Even though the offer letter advised Howard to seek independent advice, Kristen told him the offer was only open for 24 hours. This demonstrates that she did not give Howard a reasonable opportunity to consult independent counsel.
Zara asks Jeremy to represent her in a lawsuit. Jeremy gives Zara a written fee agreement to review and sign “at her leisure.” The agreement contains a clause that limits Jeremy’s malpractice liability to $25,000. The clause further states that it would be beneficial for Zara to seek the advice of independent counsel before returning the agreement. Zara reads the agreement herself, finds it reasonable, and returns a signed copy to Jeremy the next day.
Is Jeremy subject to discipline? (B)
Yes.
A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer’s liability for legal malpractice, except in the unlikely event that the client is independently represented in making the agreement. Note that unlike with settlements, the client must actually be represented by independent counsel; advising the client to seek representation isn’t sufficient. Because Zara wasn’t independently represented in making the agreement, Jeremy is subject to discipline.
