Duty Of Competence Flashcards
Define
Duty of Competence
A lawyer must perform all legal services with competence. No “intentional reckless, or grossly negligent failure” to perform competently.
What does competence for representation require?
- Learning and skill;
- mental capacity;
- Emotional capacity and;
- Physical ability reasonably necessary for representation.
What can an attorney do if they lack the required knowledge and skill under competence?
- Associating with another attorney.
- Learning the required knowledge or skill
- Or referring the matter to a competent attorney
Mnemonic: ALE
Associate, Learn, Exit
Define
Duty of Diligence
A lawyer has the duty to act with “commitment and dedication to the interests of the client.”
Define
Duty to Communicate
A lawyer has a duty to keep the client informed about the case.
A lawyer must explain matters sufficiently so the client may make informed decisions
Settlement Requirements
A lawyer must:
1. communicate all terms and conditions of proposed settlement.
2. Clients have the right to accept or decline and
3. Must be notified of all settlement offers
Plea Bargains
A lawyer must communicate all terms and conditions of a proposed plea deal or any other offer in a criminal matter.
Accepting Representation
A laywer is free to accept or reject any representation.
CA: A lawyer has a duty to decline represtnation if no probable cause to bring the action and the client is raising the action to harrass or malicioulsy injure a person.
Representation is acquired once the client reasonably believes AC relationship exists.
Scope of Representation
Client: Decides substnative rights
Lawyer: Controls procedure & legal strategy
How many types of withdrawal are there?
TWO.
Mandatory & Permissive
Mandatory Withdrawal
- If continuing would violate an ethical rule
- If client is persuing legal action to harass or maliciouly injur another person;
- Physical or mental shape renders an attorney incompetent;
- Client discharges attorney
- Attorney Discloses confidential client information to prevent death or substantial bodily harm.
When may an attorney permissively withdraw?
Only for good cause and if withdrawal will not cause undue delay or disruption
When can an attorney engage in sexual relations with their client?
Sexual relationships with clients is strictly prohibited unless the client is a spouse/domestic partner or preexisting sexual relationship.
Duty After Withdrawal
The procedure for terminating representation is
1. Provide the client with reasonable notice before withdrawing, to give the client an opportunity to obtain new representation;
2. Promptly return unspent fees and case materials;
3. Court approval if pending litigation
CA: Forbids withholding material until client pays.
