Responsibilities to the Client Flashcards
Define
Competence
- A lawyer must act competently in a representation - that means acting with the legal knowledge, skill, thoroughness, and preparation necessary for the representation.
- A lawyer may become competent for a representation through: (1) study or (2) by associating with a lawyer who is competent.
Define
Duty of Diligence
A lawyer must act with reasonable diligence in representing a client. As such, a lawyer must control their workload so that each matter can be adequately handled.
Who makes the decisions in a representation?
- The client makes the substantive decisions concerning the scope and objectives of the representation.
- The lawyer makes the strategic and procedural decisions.
Prohibition on Assisting a Client in Criminal Conduct
A lawyer must not counsel or assist the client in illegal or fraudulent conduct. If the client insists on pursuing the illegal course of conduct, the lawyer must withdraw from the representation.
Define
Duty of Communication
A lawyer must:
- Reasonably consult with the client about how the client’s objectives are to be accomplished.
- Keep the client reasonably informed about the status of the matter and comply with all reasonable requests for information.
- This includes notifying the client of any settlement offer or proffered plea bargain - unless the client has previously indicated that such a proposal would be rejected.
What is the scope of the duty of confidentiality?
A lawyer must not reveal information gained in the professional relationship with a client. Relates to all information about a client relating to the representation, regardless of its source.
The rules prohibit a lawyer from using confidential information to the client’s disadvantage.
Exceptions to the Duty of Confidentiality
- Disclosure necessary to prevent the client from committing a criminal act that will result in harm or substantial financial loss to another
- Disclosure is necessary to prevent death or serious injury
- Disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client.
- Disclosure is necessary to obtain legal ethics advice
- Disclosure is necessary to detect and resolve conflicts of interest
- The client gives informed consent
When must a lawyer reject or withdraw from a representation?
- The representation would result in a violation of the RPC
- The lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client
- The lawyer is discharged by the client
When is a lawyer permitted to withdraw from a representation?
- The client persists in a criminal or fraudulent course of action
- The client has already used the lawyer’s services to perpetrate a crime or fraud
- The client insists on taking action that the lawyer finds repugnant
- The client substantially fails to fulfill an obligation to the lawyer and the lawyer has given reasonable warning that the lawyer will withdraw
- The representation will result in an unreasonable financial burden
- The representation has been rendered unreasonably difficult by the client
Define
Conflicts with Former Clients
- Generally, a lawyer can represent a client adverse to a former client. However, the new matter must not be the same matter or substantially related to the former matter if the the new client’s interests are materially adverse to those of the former client - unless the former client gives informed consent.
- A matter is substantially related if (1) they involve the same transaction or legal dispute, or (2) there is a substantial risk that confidential factual information that would normally have been obtained in the former representation would materially advance the client’s position in the subsequent matter.
May a lawyer oppose a client of his former law firm?
Yes, unless the lawyer actually acquired confidential information that is material to the matter while working with the former firm - unless the former client provides informed consent.
Define
General Current-Client Conflicts
A lawyer must not represent a client if there is a significant risk that the representation of that client will be materially and adversely affected by the lawyer’s responsibilities to another client, a former client, or to a third party - unless all affected parties provide informed consent.
If the lawyer reasonably believes that the representation will not adversely affect the relationship with the other client, he may undertake it if he receives informed consent from all parties.
What conflicts may not be waived?
- Where the representation is prohibited by law or the RPC
- Where it is reasonably unlikely that the lawyer will be able to provide adequate representation
- Being on both sides of the same or substantially related litigation or other proceeding pending before a tribunal.
May a lawyer limit malpractice exposure?
A lawyer may not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.
Rules Surrounding Business Transactions with a Client
- A lawyer must not enter into a business transaction with a client unless:
- The terms are fair and reasonable to the client
- The terms are fully disclosed to the client in writing
- The client is advised in writing that they should get independent advice
- The client gives informed consent, in a writing signed by the client
- Note - this rule does not apply to standard commercial transactions between the lawyer and client for products or services that the client generally markets to others.
