pro rep Flashcards
(16 cards)
authority from client to lawyer
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express
- authority actually given by client to lawyer
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implied
- authority implied from circumstances
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apparent
- conduct of the principal that reasonably leads a 3rd party to rely on the agents authority
1.1 competetance
A lawyer shall provide competent representation to a client. Competent representation requires the (1) legal knowledge, (2) skill, (3) thoroughness and (4) preparation reasonably necessary for the representation.
re: competant handling of a particular matter includes inquiry into an analysis of the factual and legal elements of the problem
two prong test for ineffective assistance of counsel (subset of 1.1)
- to constitute ineffective counsel, errors must be very serious, so serious that counsel was not functioning as counsel guaranteed under 6th amendment
- defendant must show there is a reasonable probability that but for counsel errors the result of proceedings may have been difference
malpractice
case within a case
- plaintiff must prove lawyer was negligent
- plaintiff must prove that but for the negligence, the outcome probably would have been more favorable for plaintiff
- jury must make conclusion that the jury must make conclusions about what would have happened in the original matter if the lawyer had not been negligent
in evaluating:
- consider if attorney relationship; then if lawyer breached duty!
- have to prove negligence elements then but for neg plaintiff would be okay
attorney client relationship
if the layman person reasonably believes a relationship has been created based on the conduct -
- relationship can be brought either expressly or impliedly (moved my posistion to make you believe that my actions are something you have relied on)
attorney client relationship is created when a person seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice. this lanaguage focuses on the expecations of the person who wants the advice, not the expecations of the lawyer
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whenever such relationship exist, lawyers owe a duty of
- loyalty
- communicatin
- comepteance
- confidentiality
- conflict avoidance
implied attorney client privledge
contract theory
- attorney provides advice purusaunt to the clients request and the client relies to her detriment on that advice (like promissory estoppel)
tort theory
- it is reasonable foreseeable to the attorney that if the attorney provides neglgient advice the client will be harmed thereby
if an implied attorney-cleint reliationship then lawyer owes client full duties of loyalty, competence, confidentiality, communication and conflict avoidance
1.3 due diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
comment: 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 measure are required to vindicate a clients cause or endeavor
2.1 advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
- a client is entitled to straightforward advice expressing the lawyers honest assesment - legal advice often involved inpleasent facts and alternative that a clinet may be disciplied to confront
- lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpaltable to the client
Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer
abide by 1.4 concerning objectives of representation
A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision,
1.2 (d)
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of any proposed conduct and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
1.2(b)
A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
1.2(c)
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Rule 1.16: Declining or Terminating Representation
1.16a
a) A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation
- a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;
(3) the lawyer is discharged; or
(4) the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, d
1.16(b)
a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action that is criminal
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning
(6) the representation will result in an unreasonable financial burden on the lawyer
(7) other good cause for withdrawal exists.
1.16(c)
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
1.16(d)
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving (1)reasonable notice to the client, (2)allowing time for employment of other counsel, (3)surrendering papers and property to which the client is entitled and (4) refunding any advance payment of fee or expense that has not been earned or incurred.
The lawyer may retain papers relating to the client to the extent permitted by other law.
