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Professional Responsibility
West Virginia University School of Law
Hardesty, David C.

Professional Responsibility Outline

Prof. Hardesty – Fall 2010

1. RULE 1.1 COMPETENCE – A lawyer SHALL provide competent representation to a client.

a. Competent Representation – Requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

b. Legal Knowledge and Skill

i. Requisite Knowledge – Relevant factors

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 the matter to, or ASSOCIATE, or CONSULT with, a lawyer of ESTABLISHED COMPETENCE in the FIELD IN QUESTION

6. In many instances, the required proficiency is that of a GENERAL PRACTITIONER

7. Expertise in a particular field may be required in some circumstances

ii. A lawyer need not necessarily have special training or PRIOR EXPERIENCE to handle legal problems of a type with which the lawyer is unfamiliar

1. Perhaps the MOST FUNDAMENTAL LEGAL SKILL consists of determining what kind of legal problems a situation a problem may involve – TRANSCENDS any particular specialized knowledge

2. A lawyer can provide ADEQUATE representation in a wholly NOVEL field through necessary study

3. Competent representation can also be provided through the association of a lawyer of established competence in the field in question

iii. In an EMERGENCY a lawyer MAY give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required

1. Even in an EMERGENCY, however assistance should be limited to that REASONABLY NECESSARY in the circumstances

iv. A lawyer MAY accept representation where the REQUISITE level of competence CAN BE achieved by REASONABLE PREPARATION

c. Thoroughness and Preparation

i. Competent handling of a particular matter includes

1. INQUIRY INTO and ANALYSIS OF the factual and legal elements of the problem



a. Required attention and preparation are determined in party by WHAT IS AT STAKE

d. Maintaining Competence

i. A lawyer SHOULD keep abreast of changes in the law and its practice

ii. ENGAGE in continuing study and education

iii. And COMPLY with all CLE requirements to which the lawyer is subject


a. A lawyer SHALL ABIDE by a client’s decisions concerning the objectives of representation and SHALL CONSULT with the client as to the means by which they are to be pursued

i. A lawyer MAY take such action on behalf of the client as is IMPLIEDLY AUTHORIZED to carry out the representation

ii. A lawyer SHALL ABIDE by a client’s decision – Settle, Testify, Plea, Waive Jury Trial

b. A lawyer’s representation of a client DOES NOT CONSTITUTE an endorsement of the client’s views or activities

c. A lawyer MAY limit the scope of the representation if the limitation is reasonable under the circumstances AND the client gives INFORMED CONSENT

d. A lawyer SHALL NOT COUNSEL a client to engage, or ASSIST a client, in conduct the lawyer KNOWS to be CRIMINAL or FRAUDULENT

i. A lawyer MAY DISCUSS the legal consequences of a any proposed course of conduct

ii. A lawyer MAY COUNSEL or ASSIST a client to make a GOOD FAITH EFFORT to determine the VALIDITY, SCOPE, MEANING, or APPLICATION of the law

e. Allocation of Authority Between Client and Lawyer

i. Client has the ULTIMATE AUTHORITY to determine the purposes to be served by legal representation, within the LIMITS IMPOSED BY LAW and the lawyer’s PROFESSIONAL OBLIGATIONS

ii. Disagreement – Lawyer SHOULD seek mutually acceptable resolution of the disagreement

1. If impossible – Lawyer MAY withdraw and Client MAY discharge the lawyer

iii. The client MAY authorize the lawyer to take specific action WITHOUT consultation

1. A lawyer MAY rely on such advance authorization

2. The client MAY REVOKE such authority at any time

f. Independence from Client’s Views or Activities

i. Legal representation SHOULD NOT BE DENIED to people who are unable to afford legal services, or those whose cause is CONTROVERSIAL or the subject of POPULAR DISAPPROVAL

g. Agreements Limiting Scope of Representation

i. A limited representation may be appropriate because the client has limited objectives for the representations

ii. The limitation MUST BE REASONABLE under the circumstances

1. The time allotted must be sufficient to yield advice on which the client could rely

iii. Limitation DOES NOT EXEMPT a lawyer from the duty to provide competent representation

1. It WILL be taken into consideration when determining the legal knowledge, skill, thoroughness, and preparation REASONABLY NECESSARY for the representation (1.1)

h. Criminal, Fraudulent, and Prohibited Transactions

i. A lawyer MAY give an HONEST OPINION about the ACTUAL consequences that appear likely to result from a client’s conduct

ii. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity

iii. When a client’s course of action HAS ALREADY BEGUN and is CONTINUING

1. The lawyer is REQUIRED to avoid assisting the client

2. A lawyer MAY NOT continue assisting the client in conduct that the lawyer discovers is criminal or fraudulent

a. The lawyer MUST WITHDRAW from the representation of the client in the matter

iv. A lawyer MUST NOT PARTICIPATE in a transaction to effectuate criminal or fraudulent avoidance of tax liability

v. If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the RPC or other law OR If the lawyer intends to act contrary to the client’s instructions

1. The lawyer MUST CONSULT with the client

3. RULE 1.3 DILIGENCE – A lawyer SHALL ACT with REASONABLE DILIGENCE and PROMPTNESS in representing a client

a. A lawyer SHOULD PURSUE a matter on behalf of a client DESPITE opposition, obstruction, or personal inconvenience

b. A lawyer MUST TAKE whatever lawful and ethical measures that are required to vindicate a client’s cause or endeavor

c. A lawyer MUST act with COMMITMENT and DEDICATION to the client’s interest with ZEALOUS ADVOCACY on the client’s behalf

d. A lawyer is NOT BOUND to press for EVERY advantage that might be realized for a client

e. A lawyer’s workload must be CONTROLLED so that each matter CAN BE HANDLED COMPETENTLY


g. Unless relationship is terminated, a lawyer should carry through to conclusion all maters undertaken for client


a. A Lawyer SHALL…

i. PROMPTLY inform the client of any decision or circumstance with respect to which the client’s INFORMED CONSENT is required

ii. REASONABLY CONSULT with the client about how to accomplish the client’s objectives

iii. Keep the client REASONABLY INFORMED about the status of the matter

iv. PROMPTLY COMPLY with REASONABLE requests for information

v. 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

b. A lawyer SHALL explain a matter to the EXTENT REASONABLY NECESSARY to permit the client to make INFORMED DECISIONS regarding representation

c. Communication with Client

i. A lawyer SHALL PROMPTY CONSULT with and secure the client’s consent PRIOR to taking action

1. UNLESS prior discussions with the client have resolved what action the client wants the lawyer to take

ii. A lawyer SHALL REASONABLY CONSULT with the client about the means to be used to accomplish the client’s objectives

1. UNLESS an immediate decision must be made, the lawyer MAY BE REQUIRED to act without prior consultation

a. The lawyer must act REASONABLY to inform the client of actions the lawyer has taken on the client’s behalf

iii. Regular communication with the client will MINIMIZE the occasions where the client will need to request information

1. When a prompt response is NOT FEASIBLE

th this procedure when MANDATORY

1. If it is VOLUNTARY – the lawyer SHOULD conscientiously consider submitting to it


a. A lawyer SHALL NOT REVEAL information relating to the representation of a client unless the client gives INFORMED CONSENT, the disclosure is IMPLIEDLY AUTHORIZED, or the disclosure is PERMITTED by ¶B

i. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could REASONABLY LEAD to the discovery of such information by a 3rd party

ii. A lawyer MUST ACT COMPETENTLY to safeguard info relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer OR other persons who are participating in the representation of the client OR who are subject to the lawyer’s supervision

b. A lawyer MAY REVEAL information relating to the representation of a client to the extent the lawyer REASONABLY BELIEVES NECESSARY…

1. The lawyer should first seek to persuade the client to take action to obviate the need for disclosure

ii. To prevent REASONABLE CERTAIN death or substantial bodily harm

1. Reasonably Certain – 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 the threat

iii. To prevent the client from committing a crime or fraud that is REASONABLY CERTAIN to result in SUBSTANTIAL injury to the financial interests or property of another and of which the client HAS USED or IS USING the lawyer’s services

1. Limited to the EXTENT NECESSARY to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud

iv. To PREVENT, MITIGATE, or RECTIFY SUBSTANTIAL INJURY to the financial interest or property of another that is REASONABLY CERTAIN to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services

1. The lawyer may disclose information relating to the representation to the EXTENT NECESSARY to enable the affected person to prevent or mitigate REASONABLY CERTAIN LOSSES or to attempt to recoup their losses

2. Does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense

3. Does not require the lawyer to await the commencement of an action or proceeding that charges complicity in the client’s wrongful acts

4. A lawyer entitled to a fee is permitted to prove the services rendered in an action to collect it

v. To secure LEGAL ADVICE about the lawyer’s compliance with these rules

1. When disclosure of info relating to the representation appears to be required by other law, the lawyer MUST discuss the matter with the client as required by Rule 1.4

2. If the other law supersedes this rule and requires disclosure, the lawyer is permitted to make such disclosures as necessary to comply with the law

vi. To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client

vii. To establish a defense to a criminal charge or civil claim against the lawyer based on the conduct in which the client was involved

viii. Respond to allegations in any proceeding concerning the lawyer’s representation of the client