Professional Competence Flashcards
What is the basic requirement for legal competence?
Basic legal research and drafting skills and the ability to assess legal implications
Are honest mistakes usually sufficient for discipline?
No
When can a lawyer represent someone when they lack expertise?
If they can achieve it by reasonable preparation
A lawyer lacking the necessary knowledge or experience should:
- decline or withdraw,
- become competent without unreasonable delay; or
- Associate with competent counsel
In an emergency, can a lawyer assist in a matter in which they lack the requisite skill?
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
Does an attorney have a duty to be diligent when representing a client?
Yes, and cannot excuse himself through illness, subordinates, animosity, or other inability
Does an attorney have an obligation to represent a client on appeal?
It depends on the scope of representation
Does a lawyer’s duty of confidentiality extend only to confidential client communications?
No, it extends to all information relating to the representation
NOT co-extensive with the evidentiary privilege
What exceptions are there to the duty of confidentiality?
A lawyer may (but need not) disclose information to
- Prevent reasonably certain death or substantial bodily harm;
- Future crime or fraud reasonably certain to result in substantial injury;
- Comply with a court order;
- Rectify past crime/fraud;
- Duty of candor; or
- to the extent necessary to resolve conflicts in a change of employment, provided no prejudice to the client
May a lawyer represent a client if it would be adverse to another client?
No
When can a client waive a conflict of interest?
If they are well-informed after consultation with the lawyer, unless:
- The conflict is so severe that no reasonable lawyer would believe the conflict could be avoided; or
- It would harm the client’s interests
Does a client waiver of a conflict of interest need to be in writing?
No
When may a lawyer represent multiple clients with competing interests?
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.
Can a lawyer enter into a business transaction with a client?
Yea, but only if:
- The terms are fair and reasonable to the client;
- The client is advised in writing of seeking independent counsel and had an opportunity to do so;
- Full written disclosure; and
- Client consents in writing
Can a lawyer solicit a substantial gift to the lawyer?
No, unless the client is closely related
Token gifts are fine, if fair
Can a lawyer obtain a proprietary interest in a cause of action?
No, unless the lawyer:
- Acquires a lien granted by law to secure payment of a fee; or
- Contracts for a reasonable contingency fee
Can a lawyer negotiate for literary or media rights relating to the representation of a client?
No, unless the representation involves that literary property
Can a lawyer have sex with a client?
No, unless there was a pre-existing consensual sexual relationship
When can a lawyer receive payment from a third party?
Only if:
- Client gives informed consent;
- It does not interfere with the lawyer’s professional judgment; and
- Confidentiality is preserved
Can a lawyer provide financial assistance to a client?
No, unless advancing litigation costs
Can a lawyer limit malpractice liability?
No, unless the law permits and the client is represented by another lawyer in making the agreement
Can a lawyer in the same firm represent a client a colleague is unable to represent?
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
Is confidential information possessed by one lawyer in a firm imputed to all lawyers in the firm?
Yes
Can a former judge engage in a matter where they previously adjudicated?
No, unless all parties consent
If a lawyer represents an organization, to whom does he owe duties of loyalty and confidentiality?
The organization, not individual constituents. The lawyer must explain the identity of the client when he reasonably knows the organization’s interests are adverse
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?
Yes
if a lawyer is retained by an insurance company, who does he represent?
The insured client
