With the November 1, 2018 effective date for California’s new Rules of Professional Conduct fast approaching, you may be wondering how new Rule 1.1 [Competence] and new Rule 1.3 [Diligence] will affect your practice. How do these rules differ from one another and what do they require of practitioners? Here is a brief look at what attorneys need to know about these two new rules.
New Rule 1.1 Will Replace Rule 3-110
Rule 1.1 [Competence] will replace current Rule 3-110 [Failing to Act Competently]. This new rule states “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” (Rules of Prof. Conduct, New Rule 1.1(a).)
With the exception of the phrase, “with gross negligence,” Rule 1.1 keeps the text of Rule 3-110(A) unchanged in order to maintain California’s longstanding legal standard of barring “intentional, reckless or repeated acts of incompetence.” (Executive Summary for Proposed Rule 1.1, State Bar of California Commission for the Revision of the Rules of Professional Conduct (Feb. 2016).)
Under new Rule 1.1(a), attorneys may now be disciplined for a single act of gross negligence. This new Rule 1.1 adds the phrase, “with gross negligence,” in order to distinguish an act of “ordinary negligence.” Indeed, many State Bar Court decisions have declined to find that a single act of negligence amounts to a violation of Rule 3-110(A). (See In Matter of Riley (Rev. Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 97 [failure to pay client’s medical bill constituted negligence and not failure to act competently].) (See also In Matter of Respondent P (Rev. Dept. 2000) 2 Cal. State Bar Ct. Rptr. 622, 633; In Matter of Hanson (Rev. Dept. 1994) 2 Cal. State Bar. Ct. Rptr. 703, 711 [isolated, negligent error did not amount to failure to perform competently].)
Interestingly, liability for “gross negligence” is not a new basis for ethical liability. The State Bar has routinely alleged disciplinary violations for acts of “gross negligence” by characterizing these acts as “moral turpitude” in violation of Business and Professions Code section 6106, which provides: “The commission of any act involving moral turpitude, dishonesty or corruption . . . constitutes a cause for disbarment or suspension.” (Bus. & Prof. Code, §6106.) (See In Matter of Yee (Review Dept. 2014) 5 Cal State Bar Ct. Rptr. 330, 334; In Matter of Bouyer (Review Dept. 1991) 1 Cal State Bar Ct. Rptr. 404, 415; Vaughn v. State Bar (1972) 6 Cal.3d 847, 859 [failure to fulfill attorney duties constituted gross negligence through moral turpitude].)
So now you know that new Rule 1.1 bars you from “intentionally, recklessly, with gross negligence, or repeatedly fail[ing] to perform legal services with competence.” But what can you do if you find you are not competent to handle a client’s legal matter? New Rule 1.1(c) answers this question. It states that a lawyer 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.” (Rules of Prof. Conduct, New Rule 1.1(c).)
When meeting your duty of competence by referring the matter to another attorney, take steps to reasonably ensure that the lawyer to whom you are referring the matter is able to provide competent representation. Otherwise you risk exposure to civil liability if the client is dissatisfied with the new lawyer’s services. For this reason, it is best to provide the prospective client a list of competent attorneys and leave the ultimate decision to the potential client.
New Rule 1.3
Under new Rule 1.3, the concept of “diligence” is a separate and distinct duty. This duty requires that a lawyer “acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.” (Rules of Prof. Conduct, New Rule 1.3(b).)
The duty of diligence is not new. It is included in current Rule 3-110 [Failing to Act Competently] as part of the definition of “competence.” Rule 3-110(B) states: “For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” (emphasis added.) (Rules of Prof. Conduct, Rule 3-110(B).) Thus, Rule 3-110(B) defined competence to include a duty of diligence.
So why then is new Rule 1.3 a standalone rule? It could have been included in Rule 1.1, so that it mirrored the language contained in current Rule 3-110 describing the concept of diligence. The answer is that new Rule 1.3 was in large part created as a new and separate rule in order to strengthen consumer protection. The State Bar’s Commission for the Revision of the Rules of Professional Conduct observed that creating a separate rule would “enhance respect for and confidence in the legal profession by highlighting the concept of diligence as a key professional responsibility, rather than subsuming it within the competence rule.”(Executive Summary for Proposed Rule 1.3, State Bar of California Commission for the Revision of the Rules of Professional Conduct (Feb. 2016).)
In summary, the new rules regarding an attorney’s duties of competence and diligence substantively change and expand an attorney’s ethical requirements. They comprise an important part of the new Rules of Professional Conduct that all California attorneys must follow. There is no better time than the present to become familiar with them.
**No portion of this article 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.**