Other Duties Owed to Clients Flashcards
Duty of Competence
[ABA]
Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Duty of Competence
[CALIFORNIA]
The CRPC requires that a lawyer not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.
Additionally, CA requires the attorney to possess 1) mental; 2) emotional; and 3) physical ability.
Duty of Loyalty
[ABA] [CALIFORNIA]
Lawyers owe clients a basic duty of loyalty and independent professional judgment. When a lawyer’s independent professional judgment is potentially compromised by a nonclient interest (i.e., a conflict of interest exists), the lawyer may be in breach of the duty of loyalty.
ESSAY TIP
How should you apply the Duty of Loyalty in an essay?
Use “Duty of Loyalty” your big/main heading. Then, have the issues that are tied to the duty underneath as mini IRACs!
EX:
Duty of Loyalty
Current Clients
Current and Former Clients
Duty to Communicate
[ABA] [CALIFORNIA]
Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.
In California, there is a slight distinction in that the lawyer must keep the client reasonably informed about significant developments relating to the representation.
Duty of Diligence
[ABA]
Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client.
The lawyer must be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer.
Duty of Diligence
[CALIFORNIA]
Under the CA RPC, a lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.
“Reasonable diligence” means that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.
Under the Duty of Diligence, is a lawyer required to press for EVERY possible advantage for a client’s benefit?
No!
The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or prohibit treating all persons involved in the legal process with courtesy and respect.
ESSAY TIP: Is an attorney required, under the Duty of Diligence, to investigate the truth of evidence provided by the client?
Yes!
Attorney’s should plan to research the claim or information they seek to use before they use it.
What does “reasonable diligence” re: the Duty of Diligence mean?
Lawyer must act with commitment and dedication to the interests of the client and without neglect or undue delay.
Duty to Segregate and Safeguard Client Funds
In regards to a client’s fees/funds, an attorney must:
1) Place C’s funds in trust account
2) Avoid comingling with lawyer’s/firms funds
3) If dispute with C, return undisputed funds and keep disputed funds in separate account
4) [CA only]: C may request arbitration
What are the exceptions to the duty to segregate/safeguard client funds?
1) L can place an advance flat fee in personal account if: (i): Clients gets written disclosure; (ii) that explains the right to keep in C’s account until earned; (iii): Entitled to refund of unearned fees
2) L helps pay bank changes in C trust account
3) Award is given to both L and C that is to be distributed
