MRPC 1.1, 1.3: COMPETENCE AND DILIGENCE Flashcards
What does competency mean according to Rule 1.1?
Competent representation requires legal knowledge, legal skill, and thoroughness and preparation reasonably necessary for the representation
Explain each element of competent lawyering and provide an example
1) Knowledge → Need to know the law
Ex: LP: 1) professional conduct 2) comments for conduct 3) case law, articles in casebook
2) Legal Skills → must be competent
Ex: Litigators must be competent in filing motions, meeting deadlines, public speaking skills, communicate with clients, prepare for trial, negotiate
3) Thoroughness and Preparation
Ex: ability to research, find all the right sources, not waste client’s time
How does Rule 1.1 define a breach of competency?
Incompetent/breach of duty → beyond the standard of care
Does a lawyer need special skills or training to be competent?
Rule 1.1 [2}
Lawyer need not have special training or experience to be competent
If, in an emergency situation, can a lawyer who specializes in one area of law provide legal advice to someone in a different area of law?
Yes. Rule 1.1 [3]
In an emergency, a lawyer may give advice on a matter they would not be have the skill for generally
Should a lawyer keep up with changes in the law?
Rule 1.1 [8] Lawyer should keep abreast of changes of law including changes in relevant technology
How does a lawyer’s need to keep up with the state of the law and technology as per Rule 1.1 relate to Rule 1.6?
Malware, not using VPN, exposing client confidential information due to lack of understanding of technology
Though it’s not specified in Rule 1.1, how would cultural knowledge help a lawyer stay up-to-date with the practice of law as required?
SOME areas of non-legal knowledge are incorporated (technical competence) but that opens the door to other areas such as cultural competence
+ Representing Native American tribal members
+ You speak a different language than your client
+ Representing women as a man
What does Rule 1.3 say about diligence?
Rule 1.3 – Diligence (MANDATORY):
A lawyer shall act with reasonable diligence and promptness in representing a client.
True or false: A lawyer is bound to press for every advantage that might be realized by a client.
False. 1.3[1]
A lawyer is not bound to press for EVERY advantage that might be realized by a client.
How does a lawyer’s workload affect his ability to be diligent?
1.3[2] A lawyer workload must be controlled so that diligence standards can be met (but think about communication standards – does this not conflict)?
Can procrastination be an excuse for not acting diligently?
NO! 1.3 [3] Procrastination is not an excuse for not acting diligently
How would a sole practitioner put a plan into place if they must step away from a client matter in an emergency?
Rule 1.3[5] To prevent neglect of client matters, a sole practitioner must prepare a plan such that if they
experience death or disability someone else can step in
What are the elements required for legal malpractice?
1) Duty/priority/attorney-client relationship
2) Breach of duty → violating 1.1
3) Causation → proximate and actual/legal cause
Difficult to win, prove causation for a “trial within a trial.” In Colorado, you must hire an expert to demonstrate the probability of complaining party winning without negligence
4) Damages
How would a lawyer be sued for malpractice under 1.6(a) and 1.9?
Post-termination duties: Applies to Rules 1.6(a) (confidentiality) and 1.9 (former clients)
If you have a client that retains you advise re: cause of action and you respond with their possibilities of winning or losing in court based on current law, then refuse to take the case, YOU STILL HAVE TO LET THE CLIENT KNOW WHEN THE LAW CHANGES
Ex: Procanik I
