Duty of Competence, Communication, and Diligence Flashcards
Duty of Competence–In General
A lawyer owes his client the duty of competence, which requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client.
Under this duty, a lawyer CANNOT take a case in an unfamiliar area of law unless he gains competence by (ALE):
(a) ASSOCIATING with another lawyer reasonably believed to be competent;
(b) LEARNING sufficient learning and skill before performance is required; OR
(c) EMERGENCY (see other card)
Duty of Competence–Emergency Situations
In an emergency, a lawyer MAY give advice or assistance (even if the lawyer does not have the skill ordinarily required) where referral/consultation/association with another lawyer would be impractical.
Duty of Competence–Discipline for Incompetence
Incompetence exposes a lawyer to:
(1) discipline by the bar;
(2) disqualification of the lawyer from a litigation matter; AND/OR
(3) a civil malpractice lawsuit.
In CA, a lawyer is only subject to discipline if he intentionally, recklessly, acts with gross negligence, or repeatedly fails to perform legal services with competence.
Duty of Communication–In General
A lawyer must keep the client reasonably informed about any significant developments relating to the representation.
Duty of Communication–Examples of Obligations Imposed by Duty
The duty to communicate includes:
(1) promptly informing the client of any situation where the client’s informed consent is required;
(2) keeping the client reasonably informed on the status of the matter;
(3) promptly complying with requests for information (i.e. phone calls, inquiries);
(4) consulting with the client about strategy decisions and any matters requiring the client’s consent; and
(5) advising the client when the lawyer knows that the client expects assistance not permitted by ethical rules.
Duty of Communication–Settlements
All settlement offers MUST be conveyed to the client
Duty of Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. Unless the representation is properly terminated, the lawyer must pursue the case or matter to the end.
In CA, a lawyer CANNOT intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing the client.
