Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Simple Competence: Surprisingly Complex

One of most fundamental ethical rules is that lawyers must be competent in the provision of legal services.  It is the very first substantive rule in the ABA Model Rules of Professional Conduct (Model Rules) and the very first rule in the our new California Rules of Professional Conduct (Rule 1.1) that become effective on November 1, 2018.

At first glance competence may seem simple.  Like any other professional, indeed similar to a  worker who provides more mundane services, lawyers must provide a quality work product.  When you drill down on competence, what seems simple is surprisingly complex.

Model Rule 1.1 is followed in most of the states with some variations.  It says “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (Emphasis added.)  Model Rule 1.3 supplies another component to the ABA’s formulation of the duty of competence by providing that “A lawyer shall act with reasonable diligence and promptness in representing a client.”

That seems straightforward enough.  But California (the great exception, Carey McWilliams calls it) adds layers of unique local vintage.

New California Rule of Professional Conduct 1.1 is very similar to current Rule 3-110.  Unlike the Model Rule it defines competence as a negative, not a positive: “A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” (Emphasis added.)

Moreover, the California formulation, unlike the Model Rule, contains a very specific requirement regarding the necessary state of mind to violate the competence rule; the failure to provide competent services must be “intentional, reckless, grossly negligent or repeated.”  The intent of the rule is to remove “simple” negligence from the ambit of possible discipline, consistent with California’s long-standing approach since 1928 that the Rules of Professional Conduct are primarily, if not exclusively, govern the discipline process, and do no provide prophylactic guidance for lawyers.

What is “simple” negligence as opposed to gross negligence or recklessness? An example illustrates.  Most attorneys have calendaring systems to track important events, like the running of statute of limitations.  Failure to correctly input information into that system is probably simple negligence, a simple error, but one that would support damages in a legal malpractice action if the  client is harmed. Failure to have any calendaring system at all is almost certainly gross negligence or possibly even reckless behavior that would support discipline for violating the competence rule. (See In the Matter of Sullivan (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr 608, 1997 WL 91032.)

California adds more layers of complexity intended to provide guidance for lawyers on the meaning of competence.  Although no lawyer has ever been disciplined for violating what  is now California Rule 1.1(b) it offers important insight into the dimensions of competence:

For purposes of this rule, ’competence’ in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably  necessary for the performance of such service.

Every day, lawyers who suffer from substance abuse, mental illness, physical illness, and personal problems that impair their ability to provide competent services are undertaking work they don’t have the necessary competence to do, despite possessing the requisite learning and skill.  Sometimes these problems mask their ability to understand their limitations and sometimes sheer economic necessity compels them to undertake matters beyond their competency.  I represented a very good lawyer who began to develop Parkinson’s disease with all the problems that it entails.  Despite his gradual deterioration, he was compelled to continue to take on new work so that he could pay his health insurance premiums.  These kinds of tragedies are not uncommon.

California also adds another layer of prophylaxis that is relevant to acquiring learning and skill in Rule 1.1(c):

If a lawyer does not have sufficient learning and skill when the legal services are undertaken, the lawyer nonetheless may provide competent representation by (i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes to be competent.

No lawyer has been disciplined for violating this section but it offers an important roadmap to how a lawyer who is not competent can become competent and avoid violating the rule.

Finally, our competence rule contains this provision which is rather odd because it suggests that incompetent practice is acceptable in an emergency:

In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in an emergency must be limited to that reasonably necessary in the circumstances.

The theory here seems to be that an incompetent lawyer is better than no lawyer at all.  That is probably true in most instances.  It is hard to know how this part of the rule is applied because there is no case law or public discipline decision testing this principle.

As the rules recognize, competence is the first and primary principle for the ethical lawyer. The California detailed competency rules give lawyers greater guidance and assistance in abiding by the cardinal rule requiring competence.

David Carr is an attorney at law. 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**