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Legal Profession
University of Denver School of Law
Wald, Eli

Legal Profession Outline

Eli Wald

Spring 2015

Rule 1.0 Terminology

(a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.

(b) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.

(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.

(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

(g) “Partner” denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.

(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

(i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

(j) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

(k) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

(l) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.

(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.

(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

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.

Discussion

Legal Knowledge and Skill

Important legal skills that are required in all legal problems:

1. Analysis of precedent

2. Evaluation of evidence

3. Legal drafting

4. Determining what kind of legal problems a situation may involve

This rule means that you cannot take on a case in which you cannot adequately prepare for.

Example: Can you take a death penalty case as your first case? Yes, because every case will be your first case. A newly admitted lawyer can be as competent as a practitioner with long experience. You just need to do whatever it is necessary to become competent on the matter. A lawyer can provide adequate representation in a wholly novel field through necessary study.

In order to determine whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include:

1. Relative complexity and specialized nature of the matter.

2. The lawyer’s general experience.

3. The lawyer’s training and experience in the field in question.

4. The preparation and study the lawyer is able to give the matter.

5. Whether it is feasible to refer to, or associate or consult with, a lawyer of established competence in the field in question.

a. When a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client AND must reasonably believe that the lawyer’s services will contribute to the competent and ethical representation of the client. (other rules that come into play are 1.2, 1.4, 1.5(e), 1.6, and 5.5(a)).

b. The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances including but not limited to:

i. Education, experience and reputation of the nonfirm lawyers.

ii. Nature of the services assigned to the nonfirm lawyers.

iii. Legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed (particularly relating to confidential information).

In many instances, the required proficiency is that of a general practitioner. A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. But, expertise in a particular field of law may be required in some circumstances.

Can you be liable for violating for 1.1 for not possessing non-legal bodies of knowledge? Comment one of this rule states that when determining whether a lawyer employs the requisite knowledge and skill in a particular matter, one relevant factor to consider is the lawyer’s general experience. You may need background knowledge for certain types of law.

Example: Native American Law, and knowing their culture (culture competence). Emerging case law that says a failure to know what you don’t know, and not conferring with others is grounds for discipline, you need to know what you don’t know and seek help when this happens.

In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to o

wyer shall act with reasonable diligence and promptness in representing a client.

Discussion

Diligence

This means 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.

BUT, this does not mean that a lawyer is bound to press for every advantage that might be realized for a client.

Example (rules book): A lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.

Reasonable diligence does not require the use of offensive tactics.

This rule also does not preclude a lawyer from treating all persons involved in the legal process with courtesy and respect.

A lawyer must not take on more than the lawyer can handle. This means that a lawyer’s workload must be controlled so that each matter can be handled competently.

The duty of diligence may require that each sole practitioner prepare a plan, in conformity with the rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.

Example (Wald): A lawyer may designate another lawyer to handle their cases in case of being disabled or their premature death but the lawyer must inform the client of this arrangement.

Richard Abel: He argues that lawyers should be open to talking and consulting with others.

Promptness

A lawyer should not procrastinate because this could adversely affect the client.

Example: When a lawyer procrastinates, and with the passage of time, a lawyer overlooks a statute of limitations.

Unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

BUT, reasonable promptness does not preclude a lawyer from agreeing to a REASONABLE request for a postponement that will not prejudice the lawyer’s client.

Representation

Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.

A lawyer should make sure the client reasonably knows when the relationship ceases to exist. The lawyer should preferably convey this to the client in writing so the client does not have to assume whether the lawyer is looking after their affairs or not.

Example (rules book): If a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. (1.4(a)(2)).