LEGAL ETHICS ASSIGNMENT 3

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School

University of California, Berkeley *

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201

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Law

Date

Apr 26, 2024

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docx

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Has Diane violated Model Rule 1.1? Competency is at issue because Diane, a tax attorney is asked to represent her friend’s son in a criminal matter. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Although Diane is a tax attorney with no criminal law experience, she can still take on the matter if she is able to get up to speed on the matter. However, it is unclear if Diane actually got up to speed because she did not engage in any legal research and was given copies of standard motions from her friend. The fact that there is no evidence/facts to support that Diane attempted to educate herself on the matter or study before the court appearance means that she likely violated 1.1 because she did not provide competent representation since she lacked legal knowledge regarding criminal matters and did not prepare for the appearance, she just used Lilith’s standard motions as a starting point. Although Diane did consult with her Friend Lilith who is an experienced criminal lawyer but before contracting or consulting another lawyer from an outside firm to assist in legal services to a client, a lawyer must obtain written informed consent, which Diane failed to do, accordingly this is a violation of 1.1. In addition, Diane misled Sam and failed to obtain informed consent when she introduced Lilith as her colleague which was a blatant lie and did not give Sam the option to decide whether he wanted Lilith’s advice. Diane will argue that she reasonably believed that Lilith’s retention would contribute to the competent and ethical representation of her client, however that does not excuse the need for Sam to consent to the assistance from Lilith, thus a violation of 1.1 occurred. Further, both Diane and Lilith did not ordinarily consult with each other and the client about the scope of their representation and the allocation of responsibility between the two, instead after the interview of Sam Diane informs Lilith that she will take it from here and hands her an unknown payment. Diane also failed to investigate Sam’s story and follow up on Lilith’s assertion that if Sam’s story was truthful then the prosecution’s case was very weak and there was a strong entrapment defense. Sam also continues to express that he is innocent and wants to know whether there are other options available to him, but Diane does not do any research to corroborate the statements he provides, nor does she try to research any other viable options that would be beneficial to him. Further, there are no facts to support that Diane adequately prepared for the matter with the attention it deserved as she failed to determine whether Lilith’s statement about Sam’s case was a viable route for her to pursue. Accordingly, Diane failed to provide competent handling of the matter as she did not inquire into or analyze the factual and legal elements of the problem and failed to receive informed consent from her client Sam regarding Lilith. Diane has violated 1.1. Has Diane violated Model Rule 1.4? Communication is at issue because Diane failed to tell Sam very important information regarding his representation. 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 (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Diane did not tell Sam about alleged association with Lilith and her limited role. Lilith sent motions, was present during interview, and provided post interview advice yet Diane failed to receive informed written consent from Sam regarding her help with his representation because Lilith was not employed by the same firm. In addition, Diane was not honest about her lack of criminal law experience and the need for her to rely on Lilith as well as Lilith’s expertise in criminal matters. Thus, Sam was unable to make an informed decision regarding who he should hire to represent him on the matter that would be knowledgeable and able to guide him in deciding who should represent/advise him. Further, Diane failed to tell Sam about the extent of Lilith’s role, the conflict since they did not work at the same firm, and the payment she would receive for the work she has done. Thus, Sam did not have the capacity to make an insightful/thoughtful decision regarding whether to retain Lilith, whether the conflict was something he was fine with, and whether he was willing to make a payment to her as well. Lastly, Diane failed to Sam about all of his options and that if his story was true then the prosecution would have a weak case, which severely diminished his representation, this is apparent through Sam’s questioning if he had any other choice and she withheld information regarding other strategy and the likelihood of success. Yet, Diane decided to take Sam’s mother, Carla interest into favor more than his own and advised him that the reduced charge with probation and drug rehabilitation would be Sam’s best chance. This ultimately led Sam to not have sufficient information to participate intelligently in decisions concerning his representation. Accordingly, Sam’s representation was detrimentally impacted due to the lack of communication from Diane and her failing to reasonably inform Sam of the matter so that he could make informed decisions regarding the matter/his representation and decide what was best for himself rather than being pegged into the outcome that his mother wanted. Diane has likely violated 1.4. Has Diane violated Model Rule 1.8(f)? At issue is a Conflict because there are no facts showing that Sam consented for his mother to pay Diane to represent him. A lawyer shall not accept compensation for representing a client from one other than the client unless: the client gives informed consent; there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and information relating to representation of a client is protected as required by Rule 1.6. Carla, a prominent politician comes to Diane and asks her to represent her son, however Sam never consents to this representation nor has any say in the matter. The fact that Diane has a prior

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