Duty of Competence Flashcards
Duty of Competence
ABA Rules provide that a lawyer must act competently and with care in handling legal matters for his client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
* lawyer may become competent in a certain field through adequate preparation
* lawyer may solve a competence problem by consulting with a lawyer of established competence in a certain field
In California, a lawyer is subject to discipline if she intentionally, recklessly, repeatedly, or with gross negligence fails to perform legal services with competence.
* CA recognizes mental, physical, and emotional ability for competence
In determining whether a lawyer possesses the requisite knowledge and skill, relevant factors include:
* the relative complexity and specialized nature of the matter,
* the lawyer’s general experience, the lawyer’s training and experience in the field in question,
* the preparation and study the lawyer is able to give the matter, and
* whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
Here, the lawyer specializes in _____
- Does lawyer have knowledge/experience to handle this kind of case?
- If not, the lawyer must educate herself in the subject matter or consult with an experienced attorney. If lawyer does not, the lawyer is in breach of her duty of competence.
Duty to Communicate
Duty to Communicate
* (a) Promptly inform client of any decision/circumstance concerning client’s informed consent
* (b) Reasonably consult with client about how client’s objectives should be accomplished; client has ultimate authority in deciding objectives of representation. Client makes decision as to waive jury trial, settle, plead guilty, or testify.
* (c) Lawyer must promptly respond to reasonable requests for information
* (d) Keep client reasonably informed about status of matter.
* (e) Consult with client about limitation on lawyer’s conduct if client expects assistance not permitted by Rules
* (f) Lawyer almost must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
California Rules specifically provide that a lawyer must obtain a client’s consent before agreeing to pay the client’s expenses to third persons from funds collected or to be collected for the client as a result of the representation.
Decision as to settle, waive jury trial, plead, or testify
A client has the ultimate authority in deciding the objectives of the representation, including whether to accept a settlement offer, waive jury trial, testify, or plead. In the course of representing the client, the lawyer must act in the client’s best interest at all times.
- Was lawyer acting in client’s best interest?
- Did lawyer have good faith basis for telling client to do X?
General rule
Avoiding Misrepresentation and Deceit
- Lawyer trying to conceal her identity?
- Lawyer deliberately trying to deceive someone?
- Lawyer lying to a person?
A lawyer has a duty to not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Duty of Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
CA: no discipline unless intentional, reckless, repeated, or gross negligence incompetence
