Not Using CALR Technology: Ethical and Liability Risks Is there an obligation to use CALR and the Web?
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Not Using CALR Technology: Ethical and Liability Risks Is there an obligation to use CALR and the Web?
- 1. Not Using CALR Technology: Ethical and Liability Risks Is there an obligation to use CALR and the Web? ©Professor Jon R. Cavicchi Originally Prepared for N.H. Bar Association CLE Franklin Pierce Law Center Last Updated 2009
- 3. The story survives of a hapless advocate in Elizabethan England who wrote a prolix brief. The court ordered that his head be put through a hole in the brief, which hung around his neck with the "written side outward." A warden then led him "bareheaded and barefaced round about Westminster Hall, whilst the Courts (were) sitting…” 1 George Spence, The Equitable Jurisdiction of the Court of Chancery 376-77 n.h (1846) (reporting 1596 case of Mylward v. Weldon).
- 7. Ethics research A few tools and strategies
- 8. 45K44 45K129 In 1993 West added Attorney-Client 112.50 Research of Law
- 18. Not Using New CALR Technology: Ethical and Liability Risks? Is there an obligation to use CALR and the Web? Typical lawyer answer…maybe!
- 27. NHRPC 1.2 Representation When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client regarding the relevant limitations on the lawyer's conduct.
- 28. NHRPC 1.3 Diligence (a) A lawyer shall act with reasonable promptness and diligence in representing a client. (b) Performance by a lawyer is prompt and diligent when: (1) it is carried out in the manner and within the time parameters established by the agreement between the client and the lawyer; however, the lawyer may not rely upon the terms of an agreement to excuse performance which is not prompt and diligent in light of changes in circumstances, known to the lawyer, which require adjustments to the agreed upon schedule of performance. (2) in all other matters of representation, it is carried out with no avoidable harm to the client's interest nor to the lawyer-client relationship.
- 31. NHRPC 2.1 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.
- 32. NHRPC 3.1. Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
- 33. NHRPC 3.3 Duty of Candor A lawyer shall not knowingly…fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel Courts have read this as what the lawyer should know!
- 38. [W]e believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. In the instant case, ample evidence was introduced to support a jury finding that defendant failed to perform such adequate research into the question of the community character of retirement benefits and thus was unable to exercise the informed judgment to which his client was entitled.
- 45. 88 cases added since 9/04 the most recent dated the end of April
- 48. Has the free Web become a standard research tool?
- 54. NHRPC 3.3 Duty of Candor A lawyer shall not knowingly…fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel Courts have read this as what the lawyer should know!
- 58. Updating authorities Scolding and sanctions
- 70. Sanctions Rule 11 State equivalents
- 83. In closing….”Resistance is Futile”