Sunday, March 9, 2008


See? I told you this stuff was boring! But you and I both need to be properly educated about duties and responsibilities of our attorneys. So, no, Anonymouse, I'm not a Big Baby. I'm a citizen who expects people to put their money where their mouth is. By that I mean:
a: Loyalty before everything but honor. If you are someone's friend, be a friend unless it requires you to compromise your own honor. Being a supportive friend to Wes Teel does not require me to compromise myself in any fashion.
b. If you are going to make accusations and allegations about a person, then cite the specific rule he has broken. We hear a lot of comments that he was a bad lawyer. Put your money where your mouth is. Just losing your case doesn't make an attorney a bad lawyer. Give a substantive reason to back up your opinion.

(P.S. I'm sorry this prints out with such gaps on the lines. It doesn't look this way when I put it in the box.)

A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.
Legal Knowledge and Skill. In determining whether a lawyer employs the requisite
knowledge and skill in a particular matter, relevant factors include the relative complexity
and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training
and experience in the field in question, the preparation and study the lawyer is able to give
the matter and whether it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In many instances the required
proficiency is that of a general practitioner. Expertise in a particular field of law may be
required in some circumstances.
A lawyer need not necessarily have special training or prior experience to handle legal
problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as
competent as a practitioner with long experience. Some important skills, such as the analysis
of precedent, the evaluation of evidence and legal drafting, are required in all legal problems.
Perhaps the most fundamental legal skill consists of determining what kind of legal problems
a situation may involve, a skill that necessarily transcends any particular specialized
knowledge. A lawyer can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the association of
a lawyer of established competence in the field in question.
In an emergency a lawyer may give advice or assistance in a matter in which the 12
lawyer does not have the skill ordinarily required where referral to or consultation or
association with another lawyer would be impractical. Even in an emergency, however,
assistance should be limited to that reasonably necessary in the circumstances, for ill
considered action under emergency conditions can jeopardize the client’s interest.
A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed as
counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation. Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of the problem, and use of methods
and procedures meeting the standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are determined in part by what is at
stake; major litigation and complex transactions ordinarily require more elaborate treatment
than matters of lesser consequence.
Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer
should engage in continuing study and education. If a system of peer review has been
established, the lawyer should consider making use of it in appropriate circumstances.
Code Comparison
DR 6-101(A)(1) provides that a lawyer shall not handle a matter "which he knows or
should know that he is not competent to handle, without associating with him a lawyer who
is competent to handle it." DR 6-101(A)(2) requires "preparation adequate in the
circumstances"; Rule 1.1 more fully particularizes the elements of competence.
(a) A lawyer shall abide by a client's decisions concerning the objectives of
representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to
the means by which they are to be pursued. A lawyer shall abide by a client's decision
whether to accept an offer of settlement of a matter. In a criminal case, a lawyer 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.
(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.
(c) A lawyer may limit the objectives of the representation if the client gives informed
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that a
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of
any proposed course of conduct with a client and may counsel or assist a client to make a
good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules
of Professional Conduct or other law, the lawyer shall consult with the client regarding the
relevant limitations on the lawyer's conduct.
[Amended effective November 3, 2005]
Scope of Representation. Both lawyer and client have authority and responsibility
in the objectives and means of representation. The client has ultimate authority to determine
the purposes to be served by legal representation, within the limits imposed by law and the
lawyer’s professional obligations. At the same time, a lawyer is not required to pursue
objectives or employ means simply because a client may wish that the lawyer do so. A clear
distinction between objectives and means sometimes cannot be drawn, and in many cases the
client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer
should assume responsibility for technical and legal tactical issues, but should defer to the
client regarding such questions as the expense to be incurred and concern for third persons
who might be adversely affected. Law defining the lawyer’s scope of authority in litigation
varies among jurisdictions.
In a case in which the client appears to be suffering mental disability, the lawyer’s
duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.
Independence from Client’s Views or Activities. Legal representation should not
be denied to people who are unable to afford legal services, or whose cause is controversial
or the subject of popular disapproval. By the same token, representing a client does not
constitute approval of the client’s views or activities.
Services Limited in Objectives or Means. The objectives or scope of services
provided by a lawyer may be limited by agreement with the client or by the terms under
which the lawyer’s services are made available to the client. For example, a retainer may be
for a specifically defined purpose. Representation provided through a legal aid agency may
be subject to limitations on the types of cases the agency handles. When a lawyer has been
retained by an insurer to represent an insured, the representation may be limited to matters
related to the insurance coverage. The terms upon which representation is undertaken may
exclude specific objectives or means that the lawyer regards as imprudent.
An agreement concerning the scope of representation must accord with the Rules of
Professional Conduct and other law. Thus, the client may not be asked to agree to
representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate
the lawyer’s services or the right to settle litigation that the lawyer might wish to continue.
Criminal, Fraudulent and Prohibited Transactions. A lawyer is required to give
an honest opinion about the actual consequences that appear likely to result from a client’s
conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent
does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not
knowingly assist a client in criminal or fraudulent conduct. 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.
When the client’s course of action has already begun and is continuing, the lawyer’s
responsibility is especially delicate. The lawyer is not permitted to reveal the client’s
wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid
furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may
not continue assisting a client in conduct that the lawyer originally supposes is legally proper,
but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore,
may be required.
Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
Paragraph (d) applies whether or not the defrauded party is a party to the transaction.
Hence, a lawyer should not participate in a sham transaction; for example, a transaction to
effectuate criminal or fraudulent escape of tax liability. Paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal services to a lawful
enterprise. The last clause of paragraph (d) recognizes that determining the validity or
interpretation of a statute or regulation may require a course of action involving disobedience
of the statute or regulation or of the interpretation placed upon it by governmental authorities.
Code Comparison
Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states
that "In certain areas of legal representation not affecting the merits of the cause or
substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his
own. But otherwise the authority to make decisions is exclusively that of the client. . . ." EC
7-8 states that "In the final analysis, however, the . . . decision whether to forego legally
available objectives or methods because of nonlegal factors is ultimately for the client. . . .
In the event that the client in a nonadjudicatory matter insists upon a course of conduct that
is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules,
the lawyer may withdraw from the employment." DR 7-101(A)(1) provides that "A lawyer
shall not intentionally . . . fail to seek the lawful objections of his client through reasonable
available means permitted by law. . . . A lawyer does not violate this Disciplinary Rule,
however, by . . . avoiding offensive tactics. . . ."
Rule 1.2(b) has no counterpart in the Code.
Rule 1.2(c) has no counterpart in the Code.
With regard to paragraph (d), DR 7-102(A)(7) provides that a lawyer shall not
"counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR
7-102(A)(6) provides that a lawyer shall not "participate in the creation or preservation of
evidence when he knows or it is obvious that the evidence is false." DR 7-106 provides that
"A lawyer shall not . . . advise his client to disregard a standing rule of a tribunal . . . but he
may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5
states that "A lawyer should never encourage or aid his client to commit criminal acts or
counsel his client on how to violate the law and avoid punishment therefor."
With regard to Rule 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdraw
from representation if a client "insists" that the lawyer engage in "conduct that is illegal or
that is prohibited under the Disciplinary Rules." DR 9-101(C) provides that "a lawyer shall
not state or imply that he is able to influence improperly . . . any tribunal, legislative body or
public official."
See also MSB Ethics Opinion No. 92.
Next post will be Rule 1.3

No comments: