Duty to Clients Flashcards
Duty of Competence & Definition of Competence (MR + CRPC)
A lawyer must provide competent representation to their clients.
Competence is defined as applying:
- the learning and skill; and
- the mental, emotional, and physical ability reasonably necessary for performing legal services.
Duty of Competence
Re: California Rules
The duties set forth in CRPC 1.1 include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.
Duty of Competence
Re: When can a lawyer competently provide services in areas where he is not specialized or otherwise considered competent?
associating or consulting with a lawyer reasonably believed to be competent; or
acquiring sufficient learning and skill before performance is required.
Duty of Competence
Re: When can’t a lawyer make himself competent to take on a case?
a lawyer cannot take the time to make themselves competent if it would amount to a reasonable expense or delay to a client.
Ultimately: A lawyer should not accept representation that he does not have the time or resources to perform properly.
Malpractice
In California, you CANNOT write in retainer agreement language that says “in the event I commit malpractice you cannot sue me or if you do sue me your recovery will be limited to x amount of dollars.
Model rules you can, as long as the client is independently represented in making this agreement.
Lawyer’s Personal Interest
Re: Model Rules + CRPC
o A lawyer cannot enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to the client, unless:
the transaction is fair and reasonable to the client, and the terms are disclosed in writing;
the client has independent legal representation or is advised to seek such representation; and
the client then provides informed written consent to the terms and to the lawyer’s role in the transaction.
CBPC & Moral Turpitude
A lawyer is subject to disbarment or suspension if the lawyer engages in any act of moral turpitude, dishonesty, or corruption, whether in the course of practicing law or otherwise.
EXAMPLE: When negotiating a business transaction between two clients, a lawyer breaches his fiduciary duty and is subject to sanctions on the grounds of moral turpitude by inducing a vulnerable client to enter into a disadvantageous transaction that favors the lawyer or the other client [In re Casey, 2008 WL 5122989 (2008)].
Acquiring Interest in Litigation (MR)
A lawyer cannot acquire a proprietary interest in the cause of action or subject matter of litigation that the lawyer is conducting for a client.
The lawyer may, however:
acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
contract with a client for a reasonable contingent fee in a civil case.
Acquiring Interest in Litigation (MR)
Re: Why are there rules governing acquisition of interest in litigation?
Because we don’t want a lawyers judgment to be clouded by concern for his own interests.
Acquiring Interest in Litigation
Re: CA Rules
No parallel rule, however, a lawyer is prohibited from obtaining any financial interest that would be adverse to the client, without the client’s informed written consent.
Concurrent Conflicts of Interest
Re: (MR + CRPC)
Can’t represent a concurrent conflict of interest which exists when:
the representation is directly adverse to another client in the same or a separate matter; or
there is significant risk the lawyer’s representation of the new client would be materially limited by the duty to a current client, a former client, a third person, or by the lawyer’s own interests.
Concurrent Conflicts of Interest
Re: How CRPC differs from MR
Under the CRPC, even if there is not a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to another client, a lawyer shall not represent a client without written disclosure of the relationship to the client where:
the lawyer has, or knows that another lawyer in the firm has a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same manner; or
the lawyer knows, or reasonably should know, that another (opposing) party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm, or has an intimate personal relationship with the lawyer.
Concurrent Conflicts of Interest
Re: When representation is still permissible under MR + CRPC
Under both the Model Rules and the CRPC, representation in each situation is still permissible if:
informed written consent is obtained from each client;
the lawyer reasonably believes that competent, diligent representation can be provided;
— no law prohibits it; and
— there is no claim by one of the clients against the other in the same litigation.
Prospective clients
There is a duty of confidentiality to prospective clients, even before you have formalized that relationship with the client.
Atty can’t use or reveal info learned from a prospective client or from repping a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received info from prospective client that could be significantly harmful to that person in the matter.
Prospective Clients
Re: When is representation permitted when there is conflict between prospective client and current client?
Representation is permitted if both the affected client and the prospective client provided informed, written consent.
