Professional Competence

Question 1

What is the basic requirement for legal competence?

Answer 1

Basic legal research and drafting skills and the ability to assess legal implications

Question 2

Are honest mistakes usually sufficient for discipline?

Answer 2

No

Question 3

When can a lawyer represent someone when they lack expertise?

Answer 3

If they can achieve it by reasonable preparation

Question 4

A lawyer lacking the necessary knowledge or experience should:

Answer 4

1. decline or withdraw,
2. become competent without unreasonable delay; or
3. Associate with competent counsel

Question 5

In an emergency, can a lawyer assist in a matter in which they lack the requisite skill?

Answer 5

Yes, but only to the extent necessary, and specifically when there is an increased risk of death or incapacity with elderly client in estate planning

Question 6

Does an attorney have a duty to be diligent when representing a client?

Answer 6

Yes, and cannot excuse himself through illness, subordinates, animosity, or other inability

Question 7

Does an attorney have an obligation to represent a client on appeal?

Answer 7

It depends on the scope of representation

Question 8

Does a lawyer’s duty of confidentiality extend only to confidential client communications?

Answer 8

No, it extends to all information relating to the representation

NOT co-extensive with the evidentiary privilege

Question 9

What exceptions are there to the duty of confidentiality?

Answer 9

A lawyer may (but need not) disclose information to

1. Prevent reasonably certain death or substantial bodily harm;
2. Future crime or fraud reasonably certain to result in substantial injury;
3. Comply with a court order;
4. Rectify past crime/fraud;
5. Duty of candor; or
6. to the extent necessary to resolve conflicts in a change of employment, provided no prejudice to the client

Question 10

May a lawyer represent a client if it would be adverse to another client?

Answer 10

No

Question 11

When can a client waive a conflict of interest?

Answer 11

If they are well-informed after consultation with the lawyer, unless:

1. The conflict is so severe that no reasonable lawyer would believe the conflict could be avoided; or
2. It would harm the client’s interests

Question 12

Does a client waiver of a conflict of interest need to be in writing?

Answer 12

No

Question 13

When may a lawyer represent multiple clients with competing interests?

Answer 13

Only if:

i) The lawyer has a reasonable belief (both subjectively and objectively) that representation would not be adverse;
ii) Doing so is not prohibited by law;
iii) All potentially affected clients consent after consultation; and
iv) The representation does not involve a claim by one client against the other client.

Question 14

Can a lawyer enter into a business transaction with a client?

Answer 14

Yea, but only if:

1. The terms are fair and reasonable to the client;
2. The client is advised in writing of seeking independent counsel and had an opportunity to do so;
3. Full written disclosure; and
4. Client consents in writing

Question 15

Can a lawyer solicit a substantial gift to the lawyer?

Answer 15

No, unless the client is closely related

Token gifts are fine, if fair

Question 16

Can a lawyer obtain a proprietary interest in a cause of action?

Answer 16

No, unless the lawyer:

1. Acquires a lien granted by law to secure payment of a fee; or
2. Contracts for a reasonable contingency fee

Question 17

Can a lawyer negotiate for literary or media rights relating to the representation of a client?

Answer 17

No, unless the representation involves that literary property

Question 18

Can a lawyer have sex with a client?

Answer 18

No, unless there was a pre-existing consensual sexual relationship

Question 19

When can a lawyer receive payment from a third party?

Answer 19

Only if:

1. Client gives informed consent;
2. It does not interfere with the lawyer’s professional judgment; and
3. Confidentiality is preserved

Question 20

Can a lawyer provide financial assistance to a client?

Answer 20

No, unless advancing litigation costs

Question 21

Can a lawyer limit malpractice liability?

Answer 21

No, unless the law permits and the client is represented by another lawyer in making the agreement

Question 22

Can a lawyer in the same firm represent a client a colleague is unable to represent?

Answer 22

No, unless the lawyer’s disqualification does not present a significant risk of materially limiting the representation of the client by other members of the firm

Screening remedies this

Question 23

Is confidential information possessed by one lawyer in a firm imputed to all lawyers in the firm?

Answer 23

Yes

Question 24

Can a former judge engage in a matter where they previously adjudicated?

Answer 24

No, unless all parties consent

Question 25

If a lawyer represents an organization, to whom does he owe duties of loyalty and confidentiality?

Answer 25

The organization, not individual constituents. The lawyer must explain the identity of the client when he reasonably knows the organization’s interests are adverse

Question 26

Under the Sarbanes-Oxley Act, does a securities lawyer have an obligation to report on reasonably likely violations of securities laws to higher authorities within the corporation?

Answer 26

Yes

Question 27

if a lawyer is retained by an insurance company, who does he represent?

Answer 27

The insured client