I. Introduction
A. Sources of Authority for Regulation of Lawyers
1. Model Rules (ABA)
a) previously the Model Code
2. FRCP Rule 11 – duty of candor
3. State Statutes
4. State Supreme Court Rules
a) since lawyers are officers of the court, the state supreme court often holds that it has the ultimate authority to regulate them.
b) limited only by the state’s constitution
II. ARTICLE 1 – Client-Lawyer Relationship
A. Lawyer’s Duty of Competence Rule 1.1 – A lawyer shall provide competent representation to a client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
1. Legal Knowledge and Skill
a) determination of the proper level of knowledge and skill is a factual matter based on:
(1) complexity and specialized nature of the matter
(2) the lawyer’s general experience
(3) whether it is feasible to refer the matter or associate with a specialist.
b) lawyer need not have special training or experience to handle unfamiliar legal problems, however he must have the basic skills:
(1) to analyze precedent;
(2) evaluate evidence and draft legal materials;
(3) spotting the legal issues
c) a lawyer can provide adequate representation in a wholly novel field through necessary study or the association of a lawyer of established competence
d) in an emergency, where consultation with another lawyer is impractical, a lawyer may give advice or assistance in a matter where he does not have the ordinary skill required, but the advice must be limited to that reasonably necessary under the circumstances.
2. Thoroughness and Preparation
a) competence requires adequate research of the law and facts and adequate preparation
b) the required attention and preparation are determined in part by what is at stake:
(1) major litigation and complex transactions require more preparation than matters of less consequence.
3. Maintaining Competence – a lawyer should engage in continuing education to maintain his knowledge and skill.
4. Malpractice
a) The rules are not a basis for civil liability for malpractice, but may be used as evidence of the standard of care required of a competent attorney
b) ex: in Togstad, a lawyer, after refusing to take a case, failed to inform the “client” about the statute of limitations. The court held that the injured party was a client because she reasonably u
a client does not constitute an endorsement of their views
a) legal representation should not be denied to unpopular or controversial people
3. lawyer may not counsel a client, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,
a) however, the lawyer may counsel the client in a good faith effort to determine the validity and scope of a law.
b) there is a critical distinction between presenting an analysis of legal aspects of questionable conduct, and recommending the means by which a crime may be committed with impunity
c) the lawyer is not permitted to reveal the client’s wrongdoing (see Rule 1.6), but he may not suggest how it may be concealed or furthered
d) A lawyer may be required to withdraw from representation when he discovers that the client’s actions are criminal or fraudulent (see Rule 1.16)
determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience or the statute.
