Incompetence Flashcards
Duty of Competence
Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Competence Comment
A lawyer need not necessarily have special training orprior experience to handle legal problems of a typewith which the lawyer is unfamiliar. A newly admittedlawyer can be as competent as a practitioner with longexperience. Some important legal skills, such as the analysis ofprecedent, the evaluation of evidence and legal drafting, arerequired in all legal problems. Perhaps the most fundamentallegal skill consists of determining what kind of legal problemsa situation may involve, a skill that necessarily transcends anyparticular specialized knowledge. A lawyer can provideadequate representation in a wholly novel fieldthrough necessary study.
Four Elements of Legal Malpractice
- Duty
* Atty-client rel.; some non-clients may sue also* Scope: reasonably competent similar atty. - Breach of duty* Lawyer’s conduct falls below the standard of care of a reasonably competent similar atty.
- Causation* “But for” breach, no harm (actual cause);* Plaintiff and type of harm foreseeable(proximate cause)
- Actual/legally cognizable harm* P must show a better result would have been obtained w/o atty. neg.
Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Communication
Reasonable consultation and communication with client required
Special Responsibilities on Prosecutors
he prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
Duties of Supervising Lawyers
a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. c) A lawyer shall be responsible for another lawyer’s violationof the Rules of Professional Conduct if:(1) the lawyer orders or, with knowledge of the specificconduct, ratifies the conduct involved; or(2) the lawyer is a partner or has comparable managerialauthority in the law firm in which the other lawyerpractices, or has direct supervisory authority over theother lawyer, and knows of the conduct at a time when itsconsequences can be avoided or mitigated but fails to takereasonable remedial action
Responsibilities regarding Non-Lawyer Assistance
b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and(c) a lawyer shall be responsible for conduct of such a person that would be a violation . . . if:* (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or* (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.. . .(c) This Rule does not require the disclosure of information otherwise protected by Rule 1.6(confidentiality rule).
