Professional Responsibility Professor Nelson
Fall 2007
I. Introductory Laws Governing Lawyers
Model Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Notable Comments
The required proficiency is that of a general practitioner. Cmt. [1]. A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A lawyer can provide adequate representation in a wholly novel field through necessary study. Cmt. [2]. A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. Cmt. [4]. The required attention and preparation are determined in part by what is at stake. Cmt. [5].
àWhile incompetence may lead to discipline, it rarely does absent egregious error or a pattern of neglect. Incompetence is often the basis of malpractice liability.
Neutrality
If the rule of thumb was that you are fully taking on the assumptions of the case then we would scrutinize more who we take. This is not the case however as you should not be viewed to endorse your client’s views. Your client’s goals and transactions are something you ought to remain neutral as to. You are neutral as to the ends as to which the client is putting his efforts.
MR 1.2 (b)
A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
MR 1.16(b)(4) Declining or Terminating Representation
(b)Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
….
(4) the client insists upon taking action that the lawyers considers repugnant or with which the lawyer has a fundamental disagreement.
Partisanship
Requirement of pursuing the client’s ends vigorously. Your partisanship can/should be displayed. Our adversarial system provides checks and balances that insure zealous advocacy stays within legal bounds.
MR 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment
• [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with . . . zeal in advocacy upon the client’s behalf. . . . The lawyer’s duty . . . does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
II. Client-Lawyer Relationship
MR 1.6 Confidentiality of Information
***any model rule subjects you to disciplinary actions, and within this is the confidentiality rules fall in, but not the attorney client privilege is matter of common law.
(a) A lawyer shall not reveal information reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
àAlways ask: does this relate to the representation?
Notes:
The lawyer owes no obligation to the person paying the fee only the person he is advocating.
If representation doesn’t exist the lawyer bears the responsibility to make that clear to the parties.
Money need not change hands to create a client-lawyer relationship. A
epugnant action by the client (MR 1.16), revealing the information (MR 1.6).
MR 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Policies Behind the Confidentiality Rule and Its Exceptions
Assurance of confidentiality will encourage the client to trust her lawyer and be forthcoming with information (and sources of information) the lawyer may need to represent her. This will allow the lawyer to do a better job. The second reason is normative. Regardless of the effect on a client’s willingness to be candid or the quality of the lawyer’s work, lawyers should respect a client’s confidences because it is right to do so. The client should be in control of information about her legal matter except as she explicitly or implicitly delegates that control to the lawyer. This principle respects the client’s autonomy.
1.6 (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.
Substantial bodily harm— (1) threat that a person will suffer such harm imminently or (2) if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate threat.
