Law School Resources
Ethics & Professional
Responsibility
I.
Introduction
A.
Sources of Authority for Regulation of
Lawyers
1.
Model Rules (ABA)
a)
previously the Model Code
2.
FRCP Rule 11 - duty of candor
3.
State Statutes (CA Rules of Professional
Conduct)
4.
State Supreme Court Rules (Ca Rules of
Professional Conduct)
a)
since lawyers are officers of the court, the
state supreme court often holds that it has the
ultimate authority to regulate them.
b)
limited only by the state’s constitution
II.
ARTICLE 1
- Client-Lawyer Relationship
A.
Lawyer’s Duty of Competence -
Rule 1.1 - A lawyer shall provide competent
representation to a client with the legal knowledge,
skill, thoroughness and preparation reasonably
necessary for the representation.
1.
Legal Knowledge and Skill
a)
determination of the proper level of
knowledge and skill is a factual matter based on:
(1)
complexity and specialized nature of the
matter
(2)
the lawyer’s general experience
(3)
whether it is feasible to refer the matter or
associate with a specialist.
b)
lawyer need not have special training or
experience to handle unfamiliar legal problems,
however he must have the basic skills:
(1)
to analyze precedent;
(2)
evaluate evidence and draft legal materials;
(3)
spotting the legal issues
c)
a lawyer can provide adequate representation
in a wholly novel field through necessary study or
the association of a lawyer of established
competence
d)
in an emergency, where consultation with
another lawyer is impractical, a lawyer may give
advice or assistance in a matter where he does not
have the ordinary skill required, but the advice
must be limited to that reasonably necessary under
the circumstances.
2.
Thoroughness and Preparation
a)
competence requires adequate research of the
law and facts and adequate preparation
b)
the required attention and preparation are
determined in part by what is at stake:
(1)
major litigation and complex transactions
require more preparation than matters of less
consequence.
3.
Maintaining Competence - a lawyer should
engage in continuing education to maintain his
knowledge and skill.
4.
Malpractice
a)
The rules are not a basis for civil liability
for malpractice, but may be used as evidence of the
standard of care required of a competent attorney
B.
Scope of Representation - Rule 1.2 -
1.
a lawyer shall abide by the client’s
decisions concerning the objectives of
representation, including whether to accept a
settlement, or whether to enter a plea or testify in
a criminal action.
a)
the lawyer should assume responsibility for
determining the means to achieve the client’s
objectives, including the legal and tactical issues.
b)
the client may not be asked to agree to
representation so limited that in scope that it:
(1)
violates Rule 1.1;
(2)
surrenders the right to terminate the
lawyer’s services; or
(3)
surrenders the right to settle litigation
that the lawyer might wish to continue
2.
lawyer’s representation of a client does not
constitute an endorsement of their views
a)
legal representation should not be denied to
unpopular or controversial people
3.
lawyer may not counsel a client, or assist a
client, in conduct that the lawyer knows is criminal
or fraudulent,
a)
however, the lawyer may counsel the client in
a good faith effort to determine the validity and
scope of a law.
b)
there is a critical distinction between
presenting an analysis of legal aspects of
questionable conduct, and recommending the means by
which a crime may be committed with impunity
c)
the lawyer is not permitted to reveal the
client’s wrongdoing (see Rule 1.6), but he
may not suggest how it may be concealed or furthered
d)
A lawyer may be required to withdraw from
representation when he discovers that the client’s
actions are criminal or fraudulent (see Rule 1.16)
e)
determining the validity or interpretation of
a statute or regulation may require a course of
action involving disobedience or the statute.
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