incompetance/malpractice

Question 1

Competency

Answer 1

1) MR 1.1
a) Competent representation requires
i) (1)Knowledge, (2) Skill, (3) Thoroughness and (4) Preparation: reasonably necessary for the representation.

Question 2

new case requirements

Answer 2

1) MR 1.1 comment 2

Most cases require analysis of (1) precedent, (2) Facts, & (3) Legal Drafting

Question 3

reasonable preparation for a case

Answer 3

2) MR 1.1 comment 2 & 4
a) Lawyer may accept a new case or novel issue where competence can be achieved by reasonable preparation
i) Factors:
One. Complexity of the case
Two. Specialized nature of the case
Three. Lawyers general experience
Four. Training and experience in the field
Five. Preparation and Study
Is it feasible to refer or consult with another Lawyer

Question 4

experience satisfaction alternative

Answer 4

3) MR 1.1 Comment 2

Competence can be satisfied by associating with experienced lawyer

Question 5

Maintaining competancy

Answer 5

1) MR 1.1 Comment 6
a) Lawyer should keep up on changes in law and Practice by continuing their legal education.
2) Utah Rule 14-404
a) Lawyer shall complete every two years: 24 hours of CLE which includes 3 hours of ethics and 1 hour on civility.
3) Utah Rule 14-808
Mandatory 12 month mentoring program for new bar members

Question 6

Waiver of Competence

Answer 6

1) MR 1.2 comment 7
a) A client may not waive a lawyers duty of competence,
b) However
A Lawyer may limit their liability for malpractice if the client is independently represented in making the agreement

Question 7

Dilligence v. Neglect

Answer 7

1) (Diligence) MR 1.3:
a) A lawyer shall act with reasonable diligence and promptness in representing a client
2) (Neglect) ABA opinion 1973
Consistent failure to carry out obligations or conscious disregard for responsibility owed to a client.

Question 8

Dilligence for your clients

Answer 8

1) MR 1.3 Comment 1
a) A Lawyer must act with commitment, dedication and zeal and pursue matters despite, (1) opposition, (2) Obstruction, or (3) Personal Inconvenience.
2) MR 1.3 Comment 3
A lawyer may agree to a reasonable request for postponement that will not prejudice the clients case, even over the objection of the client.

Question 9

Areas of communication

Answer 9

1) MR 1.4 (a) 1-5
The five specific areas where a lawyer must consult with the client are (1) Informed Consent, (2) Means (3) Status of the case, (4) Requests for Information and (5) Unethical conduct.

Question 10

INFORMED CONSENT

Answer 10

1) MR 1.4 (a)1
a) A lawyer shall promtly inform the client of any decision in which the clients informed consent is required
2) MR 1.4 (a) Comment 2
a) When Consent is required a lawyer must promtly consult & obtain the clients consent before taking action
3) MR 1.4 (b)
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision.

Question 11

strategy and means

Answer 11

1) MR 1.4 (a)(2)
a) A lawyer shall reasonably consult with a client about the means by which the clients objectives are to be acomplished
i) Rule 1.2
One. A client decides objectives and a lawyer decides the means
2) MR 1.4 Comment 5
a) A lawyer must discuss strategies with the client but need not discuss trial or negotiation strategy in detail
A lawyer should discuss tactics likely to result in (1) Significant expense or (2) injury or coercion to others

Question 12

Communicating status of hte case

Answer 12

1) MR 1.4 (a)(3)

A lawyer shall keep the client reasonably informed about the status of the case.

Question 13

Requests for info

Answer 13

1) MR 1.4(a)(4)

A lawyer shall promptly comply with reasonable request for information

Question 14

client expectation of unethical conduct

Answer 14

1) MR 1.4 (a)(5)
A lawyer shall consult with the client about any limitations on the lawyers conduct when the client expects assistance (unethical) not permitted by the model rules.

Question 15

Responsibilities of a partner

Answer 15

1) MR 5.1 (a)
a) A partner shall make reasonable efforts to ensure the firm has measures giving reasonable assurances that lawyers in the firm will conform to ethics rules.
b) Applies to any lawyer with managerial authority
2) Comment 2
Supervision of inexperienced lawyers

Question 16

Responsabilities of a supervisor

Answer 16

1) MR 5.1(b)
a) A lawyer that has direct supervisory authority over another lawyer and shall make reasonable efforts to ensure that the other lawyer complies with ethics rules.
2) Comment 5
a) Applies to all lawyers not just partners:
Must intervene to prevent avoidable misconduct if the supervisor knows that misconduct occurred.

Question 17

Responsibility for another Lawyers Conduct

Answer 17

1) MR 5.1 (c) (1)
a) A Lawyer is responsible for another’s lawyers conduct if the lawyer orders or, with knowledge of misconduct ratifies it (the lawyer is complicit with another attorney)
2) MR 5.1 (c) (2)
A lawyer is responsible for another lawyer if they are a partner or supervisor and knows of conduct at a time when consequences can be mitigated and fails to take reasonable remedial action.

Question 18

Subordinate lawyer duties

Answer 18

1) MR 5.2 (a)
a) Lawyer bound by the rules even though a lawyer acted at the direction of another person
2) MR 5.2 (a) (2)
a) Subordinate lawyer does not violate the rules if the lawyer acts in accordance with supervisory lawyer’s so long as there is a reasonable resolution of an arguable question of professional duty.
3) Case
Lawyer obligated to inform client of MP if the firm refuses to.

Question 19

wrongful discharge for compliance with ethics

Answer 19

Employee may have been wrongful terminated if fired for complying with ethical duties.

Question 20

Attorneys duties to legal staff

Answer 20

1) MR 5.3 (a)
a) A partner shall make reasonable efforts to ensure that the firm has measures that give reasonable assurance that conduct of non-lawyer employees compatible with ethical obligations
2) MR 5.3 (b) A Lawyer who has direct supervisory authority over a non-lawyer shall make reasonable efforts to ensure a persons conduct is compatible with ethical obligations
MR 5.3 (c) Lawyer is responsible for non-lawyer employee’s conduct if the lawyer orders or with knowledge ratifies conduct, or knows of conduct when consequences can be avoided or mitigated but fails to take reasonable remedial action.

Question 21

Duty to Report Misconduct

Answer 21

1) MR 8.3 (a)
a) If a lawyer knows that another lawyer has committed ethical violation, that raises a substantial question as to, honesty, trustworthiness, or fitness, The lawyer has a duty to inform professional authorities (the bar)
2) MR 8.3 (C)
Disclosure is not required if information otherwise protected by rule 1.6. (confidentiality provision)

Question 22

Duty to report drug use (utah Rule)

Answer 22

i. Utah Rule
1) A lawyer must report possession or use of drugs by another lawyer if the lawyer has actual knowledge of use and the lawyer has a reasonable, good-faith belief that use raises substantial question as to Lawyers honesty, trustworthiness or fitness.
ii. Exception
1) Lawyer learns of use through bona fide attorney client privilege; or
Lawyer becomes aware of use by providing services to an attorney under lawyers helping lawyers program of Bar.