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Professional Responsibility
University of Baltimore School of Law
Diamond, Claudia

PROFESSIONAL RESPONSIBILITY

DIAMOND

FALL 2012

1) Duty of competency

a) Rule 1.1: Competence

i) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

ii) Comments:

(1) Legal knowledge and skill:

(a) General practitioner

(b) Expertise may be required in some circumstances

(c) Factors:

(i) Complexity and specialized nature of the matter

(ii) Lawyer’s general experience

(iii)Lawyer’s training and experience in that field

(iv)Preparation and study the lawyer is able to give the matter

(v) Whether it is feasible to refer the matter to or associate/consult with a lawyer of established competence in that field

(2) Special training or prior experience not always needed

(3) Skills that are required in all legal problems:

(a) Analysis of the precedent

(b) Evaluation of evidence

(c) Legal drafting

(4) Emergency circumstances

(a) Lawyer may advise or assist when he does not have the skill ordinarily required when:

(i) Referral/consultation with another lawyer is impractical

(b) Limit assistance to what is “reasonably necessary under the circumstances”

(5) Reasonable preparationàcan accept representation

(6) Maintain competence

(a) “Keep abreast of changes in the law and its practice”

(b) continue study and education

(i) MD does not require continuing legal education

(7) Lawyers are rarely disciplined purely for violations of the duty of competency. Sanctions for violations of 1.1 typically reflect egregious violations that are accompanied by other findings of wrongdoing.

i) Examples

(1) In re Docking

(a) Attorney with no prior felony-trial experience represented three Korean codefendants in a felony trial despite their conflicts of interest. Court found that attorney lacked required competence. He received a public censure.

(i) Should have associated with a more experience attorney

(ii) Should have had an interpreter at all meetings.

(2) Ethics Committee of Iowa v. Miller

(a) Attorney took on a probate matter without having any idea what he was doing and let it languish for six years. He was deemed incompetent.

(b) Received disciplinary action: The ethics committee had sent him 3 letters but received no response. He failed to cooperate with the commission and received a suspension for 3 months.

(3) Attorney Grievance Commission of MD v. Manger

(a) Spent a lot of time educating himself about mental health issues. His education went too far. The bulk of his research was of a general nature that should not have been billed to the client. The client has a right to expect the attorney will have sufficient general knowledge.

b) Rule 1.3: Diligence

i) lawyer shall act with reasonable diligence and promptness in representing a client

ii) Comments:

(1) must pursue a matter for a client despite opposition and personal inconvenience

(2) lawyer should prevent unreasonable delay

(3) to prevent neglect, lawyer must prepare a plan designating another competent lawyer if he dies

c) Rule 1.4: Communication

i) a lawyer shall:

(1) promptly inform the client of any decision/circumstance that their informed consent is required

(2) reasonably consult about means by which the client’s objectives are to be accomplished

(3) keep the client reasonably informed of the status

(4) promptly require with reasonable requests for information

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by these rules or other law

ii) shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions

d) Ineffective Assistance of Counsel

ii) Strickland v. Washington

(1) D committed several crimes, pled guilty, said he accepted responsibility for the crimes and had only acted under extreme mental stress, trial court convicted him and he was sentenced to death.

(2) Benchmark for judging any claim of ineffectiveness is whether the counsel’s conduct so undermined the proper functioning of the judicial process that the entire trial cannot be relied upon as just

(3) performance of an attorney is given great latitude, must consider all circumstances (totality of the circumstances)

(4) 2 prong test:

(a) counsel’s performance must be deficient

(i) here the counsel wasn’t deficient, his lack of action was part of his trial strategy

(b) that deficient performance must have prejudiced the D so much as to have deprived him of the right to a fair trial

(i) presumption is the attorney is competent

(5) Marshall Dissent: Said the 2-prong test created a standard that was too high and doesn’t properly protect the D’s under the 6th and 14th amendments. The test should be “failure to do x, y, and z are not only deficiencies they are prejudicial.”

ii) Prejudice does not need to be proven in a case of denial of choice of counsel. [United States v. Gonzalez-Lopez]

e) Malpractice

iii) Elements

(1) Duty: an attorney-client relationship existed

(a) May occur from retaining an attorney for advisement

(2) Breach: the D acted negligently or in breach of contract (act or omission)

(a) Violating the MPRE ≠ a breach of duty

(3) Causation: such acts were the proximate cause of the P’s damages

(4) Damages: but for the D’s conduct the P’s would have been successful in their original claim

(a) Generally cannot recover punitive damages

(b) Generally cannot recover attorney’s fees

(c) When malpractice deprives the client of competence of attorney:

(i) Damages = what he would have gotten if the claim was preserved

(ii) Proof of damages = proof the client would have won the suit

1. In a criminal case, must prove innocence

a. Acquittal is not enough

iv) Who may sue

(1) Clients

(2) intended beneficiaries of contracts/wills

(a) foreseeability of harm

v) who may not sue

(1) co-counsel may not sue each other for a loss of expected fees

2) The Attorney-Client Relationship

a) Forming the Relationship

i) 2 conditions must be satisfied for an attorney-client relationship

(1) the “client” behaved in such a way that a reasonable person in the lawyer’s position would believe that she was being asked to provide legal services and

(2) the “lawyer” behaved in such a way that a reasonable person in the client’s position would believe that the lawyer has agreed to provide legal services or at least not refused to do so

cale

(ii) Can try to argue this for an annoying client or a case that will not be as profitable as you thought

(b) Client persists on a course of action that the lawyer reasonably believes is criminal or fraudulent

(c) Client used lawyer’s services to perpetrate a crime or fraud

(d) Client insists on taking action the lawyer considers repugnant/fundamentally disagrees

(e) Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless fulfilled

(f) Representation will result in an unreasonable financial burden

(g) Other good cause

(i) May also try to use this for an annoying client

(3) Lawyer must provide notice or permission from a tribunal. If ordered lawyer shall continue representation notwithstanding good cause.

(4) Upon termination a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.

(a) Notice

(b) Time for employment of other counsel

(c) Surrendering papers and property to which the client is entitled

(d) Refunding any advance payment of fee or expense that has not been earned or incurred

iii) Accepting retainer = implicit agreement “to prosecute the matter to a conclusion”

(1) Kriesman v. Kriegsman

(a) Cannot withdraw just because

(i) case becomes more complicated

(ii) work becomes more “arduous”

(iii)retainer becomes less profitable than expected

(b) “The profession is a branch of the administration of justice and not a mere money-getting trade”

iv) Defaulting on duty can result in contempt of court

(1) Allison v. State

(a) Atty took case through trial, took fee for appeal, perfected appeal, then told client to retain someone else. No agreement reached, so atty did nothing; didn’t file in court for withdrawal. → $100 contempt fine.

(i) Even though under the facts, court probably would have allowed atty to withdraw

v) Fees on termination by client

(1) Three theories from Rosenberg v. Levin

(a) Contract rule

(i) damages = full contract price – damages, services, and expenses not expended by the discharged attorney

(ii) rationale

1. arguably most rational measure of damages

2. prevents client from profiting from his own breach

3. avoids issue of putting value on partially completed legal work

(b) Quantum meruit rule

(i) damages = reasonable value of services at time of discharge

(ii) rationale

1. client does not breach by discharging attorney

2. allows client greater freedom in choice of counsel

3. promotes public confidence in legal profession