Competence (M.R. 1.1)
“A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
Low bar to meet - All the rule requires is that you are able to handle it your work
Factors for determining whether a lawyer has the requisite knowledge and skill in a particular matter (Comment [1])
- Complexity and the specialized nature of matter
- Lawyer’s general experience
- Lawyer’s training and experience in the specific field
- The preparation and study that a lawyer is able to give to the matter
- Whether it is feasible to refer the matter to or consult with another lawyer with more specialized expertise in the specific field
Artificial intelligence concerns
*Hallucination
Ethical concerns:
- Duty of confidentiality –> putting client info into the model
- Duty of candor –> providing accurate info to the court
- Fees –> billing clients for the time you used AI to help with work
Malpractice actions
- Disciplinary action by the bar
- Arbitration
- Litigation
Diligence (M.R. 1.3)
“A lawyer shall act with reasonable diligence and promptness in representing
a client.”
Comment [1]
- A 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 measures are required to vindicate a client’s cause or endeavor. . . . ”
Comment [2]
- A lawyer’s workload must be controlled so that each matter can be handled competently.”
Mental health/substance abuse - Duty to report other lawyers (M.R. 1.16(a)(2) and M.R. 8.3(a))
M.R. 1.6(a)(2)
- A lawyer must not undertake or continue representation of a client when the lawyer suffers from a mental condition that “materially impairs the lawyer’s ability to represent the client.”
M.R. 8.3(a)
- A lawyer with knowledge that another lawyer’s conduct has violated the Model Rules in away that “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” must inform the appropriate professional authority
- i.e., Need to withdraw if you are facing a mental or physical condition that affects your competence
Mental health/substance abuse - When to report?
Are you observing a pattern of conduct that suggests the lawyer is not fulfilling her obligations under the rules?
- EX: Missing deadlines, failing to make filings required to complete a transaction, failing to perform tasks agreed to be performed, or failing to raise issues that competent counsel would be expected to raise
Don’t act on rumors or conflicting reports
- Knowing a lawyer drinks heavily in social settings is
not sufficient
The overall goal is to protect clients and the public
Mental health/substance abuse - Steps to take
- Consult with a mental health professional;
- Contact a lawyer’s assistance program;
- Speak to the lawyer; or
- Speak to the lawyer’s partners or supervising lawyers
- If a lawyer concludes there is a substantial question about the lawyer’s fitness to practice, it must be reported to the appropriate professional authority
Impaired lawyers within a firm (M.R. 5.1)
Requires that all partners in the firm and lawyers of comparable managerial authority in a law firm make “reasonable efforts” to establish internal policies and procedures designed to provide “reasonable assurance” that all lawyers in the firm fulfill the Model Rules – including impaired lawyers
Must take steps to protect the client(s)
- The burden is on the law firm and supervisor to address impaired lawyers
Reporting misconduct (M.R. 8.3(a))
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority
- “Shall” –> mandatory *
Scope of a lawyer’s authority (M.R. 1.2(a))
Subject to paragraphs (c) and (d), a lawyer…
- Shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued
- May take such action on behalf of the client as is
impliedly authorized to carry out the representation
- [In a civil case,] shall abide by a client’s decision whether to settle a matter
- [In a criminal case,] shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify
Scope of a lawyer’s authority (In general)
There is a tension between allowing a lawyer to make specific, tactical decisions versus giving the client the choice to make decisions
Overall, it is very case- and client-specific on who has the ultimate authority for what
- Decisions that are more overall strategy and less technical tend to require client input
> EX: Settlements - Clients have a right to decide on the $$ they’re willing to settle on
- Lawyers generally have control over case management
- Clients bear the consequences of the lawyer’s decisions
Communication with a client (M.R. 1.4(a))
A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law
“Promptly” - In a day or two
Withdrawal (In general)
The client can fire the lawyer at any time—even without good cause
But lawyers can only fire their clients if MR 1.16 is satisfied
- There is an implied agreement by the lawyer “to prosecute the matter to a conclusion”
Mandatory withdrawal (M.R. 1.16(a))
Except as stated in paragraph (c), 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 a 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; or
(3) The lawyer is discharged
Permissive withdrawal (M.R. 1.16(b))
Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material
adverse effect on the interests of the client;
- Sort of a catch-all –> The earlier you are in the matter, the more likely it is for you to just quit
(2) the client persists in a course of action involving
the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(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;
Limits on withdrawal (M.R. 1.16(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
Post-withdrawal duties (M.R. 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 reasonable notice to the client,
- allowing time for employment of other counsel,
- surrendering papers and property to which the client is entitled, and
- 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
Misconduct/Discrimination (M.R. 8.4)
It is professional misconduct for a lawyer to:
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the
practice of law
- This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16
- This paragraph does not preclude legitimate advice
or advocacy consistent with these Rules
Misconduct/Discrimination (M.R. 8.4) - ABA Formal Opinion 493
“Conduct that violates paragraph (g) will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.”
“Rule 8.4(g) does not regulate conduct unconnected to the practice of law, as do some other rules of professional conduct.”
Misconduct/Discrimination (M.R. 8.4) - Comment [4]
Conduct related to the practice of law includes…
- Representing clients;
- Interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law;
- Operating or managing a law firm or law practice; and
- Participating in bar association, business, or social activities in connection with the practice of law
Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining, and advancing diverse employees or sponsoring diverse law student organizations
Supervising non-lawyers (M.R. 5.3)
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) A partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
- (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
- (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action
Class Actions - potential violations
Finding a client
- Encouraging a client to give up their PI claim for a class action
- This is putting your financial interests ahead of the client
Solicitation
- This is generally a violation when selecting a class rep
- The plaintiff needs to find the lawsuit – the lawsuit can’t find the plaintiff
- To be “typical,” a plaintiff needs to seek it out themselves
Class actions - Settlements
Considerations:
- What benefits will be provided to class members?
- Is the proposed settlement fair to the class who will give up their right to sue the defendant for the same claim?
- Class counsel has a significant ethical obligation to secure a result that is in the best interest of the class
- Settlement must be the result of arm’s length negotiations and not the result of collusion
