Professional Competence

Question 1

What is the duty to decline?

Answer 1

If you cannot be competent or become competent without reasonable delay, you must decline to represent the client.

Question 2

What is the duty for diligence?

Answer 2

If you cannot be diligent, you must withdraw. (Like if you are too busy or impaired.)

Question 3

Will discipline for breach of the PR Rules lead to malpractice?

Answer 3

Not necessarily. Malpractice requires damages, but discipline does not.

• Malpractice: tort law, preponderance of the evidence, require duty, breach, causation, damage.
• Discipline: ethics violation, clear and convincing evidence, does not automatically lead to cause of action.

Question 4

What is the duty of confidentiality?

Answer 4

All information (including identity!) learned by the lawyer relating to the representation must be kept in confidence by the lawyer (even if it is public knowledge!)

Question 5

What is the attorney-client privilege?

Answer 5

A lawyer cannot be compelled to reveal material that

1. is testimonial communication (speech and writings) AND
2. is given to the attorney in confidence.

Destroyed by

• Third party presence OR
• Revelation of the information by attorney or client, unless the attorney reasonably tried to prevent an accidental disclosure and then immediately took action to fix it.

Example: A smoking gun used to shoot somebody is not privileged, but the statements by the client are.

Question 6

Can a court order an attorney to share confidential information?

Answer 6

Yes. But not privileged information.

Question 7

When may an attorney disclose confidential information?

Answer 7

1. The client provides informed consent
2. Permission is implied by representation (like you sue somebody on the client’s behalf, you don’t have to keep secret that you’re representing them)
3. To prevent death or substantial bodily injury, even if it has nothing to do with client matter.
4. To prevent client’s criminal act that the lawyer “believes likely” to result in substantial financial harm
5. To prevent or mitigate client’s crime or fraud in which lawyer’s services are used
6. To defend oneself in a controversy with clients/disciplinary proceedings (look for a client to countersue for malpractice)
7. Court orders
8. To do a conflict check, as long as the information revealed is not privileged and does not prejudice the client

Question 8

When does the duty of confidentiality terminate?

Answer 8

Never. Survives the death of the lawyer and the client.