Professional Responsibility Outline
Crystal, Spring 2007
The Lawyer-Client Relationship
A. Rule 1.1 – a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill (how you actually carry out your knowledge), thoroughness and preparation reasonably necessary to properly represent the client and carry out the lawyer’s responsibilities..
1. This general rule of competency is the most important rule for lawyers, as it is the fundamental obligation to the client.
a. A lawyer can accept representation where the requisite level of competency can be achieved through reasonable preparation.
i. Essentially, a lawyer is not required to know the law that governs the client’s legal claim before undertaking representation, provided the lawyer will be able to acquire the necessary knowledge with reasonable diligence.
b. Basic, cross cutting skills are required of all lawyers – that is, virtually all practicing lawyers in all areas of expertise must have certain basic skills, such as understanding the use of precedent, legal research skills, ability to identify and evaluate the client’s problem, and writing or drafting skills.
c. In an emergency situation, a lawyer may provide limited assistance to a client in a matter on which the lawyer would ordinarily require further study or research before service is rendered. But the lawyer must limit this service to that which is necessary under the circumstances.
2. A lawyer can be subject to professional discipline for violating the level of competency.
a. Example: Lawyer who slept through an entire trial was subject to discipline under Rule 1.1.
3. A lawyer can also be subject to malpractice / civil liability for violating Rule 1.1.
a. In the criminal arena, however, most courts have created barriers to prevent criminal defendants from being able to recover damages from their lawyer for violation of the competence rule.
i. Example: Most courts require that the defendant be found innocent, or exhaust all appeals, in order to win on a lawyer’s competence violation. However, the statute of limitations begins to run as soon as the defendant knows or should know of the lawyer’s negligence.
(I) The reason for these barriers with criminal defendants is that courts believe that if the standards are lower, they will be flooded with frivolous claims of criminal defendants suing their lawyers.
4. Although it may be difficult for criminal defendants to bring malpractice actions against their lawyers based on competency, or disciplinary actions, they may still have a constitutional competency claim of ineffective assistance of counsel.
a. Strickland v. Washington provides a remedy for incompetent representation in the criminal arena.
b. If a defendant prevails on an ineffective assistance of counsel claim, his conviction will be set aside.
c. In order to establish the ineffective assistance of counsel, Strickland v. Washington sets forth the following two part test. The defendant must show:
i. That the lawyer’s performance fell below an objective standard of reasonably effective assistance.
(I) In making this judgment, the court considers all of the facts and circumstances, including the prevailing norms of the profession.
(II) The defendant may have to bring in an expert to show that the lawyer’s conduct fell below the reasonable effective assistance standard.
(III) The court is very deferential to counsel’s decision-making – there is a presumption that the conduct of the lawyer was proper.
(IV) Examples of issues that may lead to ineffective assistance of counsel claims are failure to investigate affirmative defenses, inadequate preparation (only meeting with client once right before trial, when the lawyer has been on the case for months), failure to call witnesses, failure to allow the defendant to take the stand in his own defense (defendants have a constitutional right to take the stand in their defense – thei
one claim, wants the action to include a claim of fraud, but the lawyer thinks this claim, while not frivolous, is weak and may undermine the case – here, this would likely be a tactical decision for the lawyer to make.
iii. Although the lawyer has decision making authority with regard to the means to be used in achieving the client’s objectives, the lawyer should still consult with the client and get the client’s input when practical.
(I) For example, it is not practical for a lawyer to consult with the client before deciding whether to object in a trial, but the lawyer can consult with the client on deciding whether to include a certain claim in the complain.
iv. If the lawyer and client cannot reach an agreement with regard to a tactical decision, the ultimate decision is up to the lawyer.
(I) Where the client feels strongly about an issue, and it would not violate any Rules, the lawyer should defer to the client.
2. Because the scope of the lawyer client relationship is set by contract, lawyers and their clients may negotiate and settle on the lawyer’s scope of representation.
a. The lawyer and client can negotiate over the lengths to which the lawyer is committed to proceed in the matter.
i. For example, the client may limit actions of the attorney that the client things are too costly. The lawyer may limit his actions on matters the lawyer regards as repugnant or imprudent.
b. The lawyer and client may negotiate the subject matter / breadth of the lawyer’s services.
For example, in the representation of a lawyer retained by an insurer to represent an insured,