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LEGAL ETHICS & BASIC ATTORNEY COMPETENCE
This activity examines the legal ethics and general principles of attorney
competence, including the ABA rules, and the general rules regarding lawyer
competence in California, Florida and New York.
Activity Notes: Hyperlinks are shown as
illustrated here in typical underlined blue in the activity text below.
You may access those links by clicking on them with your computer connected
to the internet. All such links were working as of the date this activity
was releases. Annotations include references to the appropriate State Bar
Rules and related materials.
ABA Model Rules of Professional Conduct (2004)
Comment - Rule 1.1
Legal Knowledge and Skill
[1] 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 general experience,
the lawyer 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.
[2] 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 legal 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.
[3] In an emergency a lawyer may give advice or assistance in a matter
in which the 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 interest.
[4] 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
[5] 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 extensive treatment than matters of
lesser complexity and consequence. An agreement between the lawyer and the
client regarding the scope of the representation may limit the matters for
which the lawyer is responsible. See Rule 1.2(c).
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, engage in continuing study
and education and comply with all continuing legal education requirements
to which the lawyer is subject.
FLORIDA RULES ON LAWYER COMPETENCE
Comparative Analysis of Florida Rule
Model Rule Comparison
The text of the Florida Rule is identical to that of the Model Rule.
The Florida Rule Comment regarding "thoroughness and preparation" adds language
suggesting that the lawyer consult with the client about the degree of
thoroughness and the level of preparation required, as well as the estimated
costs involved under the circumstances.
Model Code Comparison
DR 6-101(A)(1) provides that a lawyer should not handle a legal matter
which he knows or should know he is not competent to handle, but does not
expressly define "competent" as does the Florida Rule. The Florida Rule also
contains no counterpart to DR 6-101(A)(3), prohibiting a lawyer from neglecting
a legal matter entrusted to him.
Disciplinary Standard of Competence
All lawyers are required to provide competent representation to their
clients. FL Rule 4-1.1. The components of competence are: (1) legal knowledge;
(2) skill; (3) thoroughness; and (4) preparation. FL Rule 4-1.1.
Under the following conditions a lawyer may handle a matter in which
the lawyer is not initially competent: (1) the lawyer undertakes the study
necessary to attain the requisite level of competence; (2) the lawyer enlists
the assistance of a competent lawyer; or (3) an emergency exists such that
referral to or association with a competent lawyer is impractical. Comment,
FL Rule 4-1.1.
The level of preparation required for a particular matter depends upon
the complexity of the matter and what is at stake. A lawyer should consult
with the client about the preparation necessary and the attendant costs.
Comment, FL Rule 4-1.1.
A lawyer may be found to have violated the requirement of competence
even if the client suffered no actual harm. Florida Bar v. Solomon,
711 So. 2d 1141 (1998); Florida Bar v. Littman, 612 So. 2d 582 (1993).
Thus, a disciplinary action for incompetence differs from an action for
malpractice which requires proof of harm to the client [see also
1.1:300].
In the context of criminal law, a claim for ineffective assistance of
counsel does not necessarily give rise to a disciplinary action based on
incompetence. Florida Bar v. Sandstrom, 609 So. 2d 583 (1992). A lawyer
who is appointed to represent an indigent person in a criminal case, who
seeks to avoid the appointment by asserting incompetence to handle the case,
cannot be held in contempt. Easley v. State, 334 So. 2d 630
(1976).
Ignorance of the law is no defense. Florida Bar v. Kinney, 606
So. 2d 367 (1992).
Noting that the comment provides that "a lawyer is not expected to give
advice until asked by the client" the Florida Supreme Court held that a lawyer
did not violate FL Rule 4-1.1 when he failed to realize the fraudulent nature
of a client scheme for collecting campaign contributions in excess of $500.
Florida Bar v. Brown, 2001 WL 776667 (Fla., July 12, 2001). The lawyer
was contacted to help solicit personal checks from subordinate lawyers and
their family members for $500. Id. The client would then allow the
lawyer to "premium bill" on a matter being handled for the client, in order
to allow the lawyer to repay the contributions in the form of bonuses.
Id. The court found no violation of rule 4-1.1 because the lawyer
was not contacted by the client for his opinion regarding the reimbursement
scheme. Id.
Sanctions:
For a first offense with no bad motive, a lawyer was publicly reprimanded.
Florida Bar v. Shannon, 398 So. 2d 453 (Fla. 1981). In Florida
Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997), a lawyer was publicly
reprimanded for violating Rule 4-1.1 when part of his client? claim was
extinguished due to the lawyer? failure to file a claim within the applicable
statute of limitations. For a case of gross neglect which resulted in the
incarceration of the lawyer? client (along with trust fund violations), an
lawyer was disbarred. Florida Bar v. Lee, 396 So. 2d 169 (Fla. 1981).
An lawyer may also be ordered to pay restitution. Florida Bar v. Micks,
628 So. 2d 1104 (Fla. 1993).
FLORIDA LAWYER CLIENT RELATIONSHIP
Rule 4-1.1 Competence
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.
Primary Florida References: FL Rule 4-1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
NEW YORK RULES ON LAWYER COMPETENCE
New York Legal Ethics
I. CLIENT-LAWYER RELATIONSHIP
1.1 Rule 1.1 Competence
1.1:100 Comparative Analysis of New York Rule
Model Rule Comparison
NY DR 6-101(A), which prohibits a lawyer from acting incompetently,
is the converse of Model Rule 1.1. Unlike Model Rule 1.1, which affirmatively
describes the elements of competence, NY DR 6-101 lists conduct which fails
to satisfy the requisite standard of competence, such as handling a legal
matter the lawyer knows he or she is not competent to handle, failing to
adequately prepare, or neglecting a legal matter. Unlike NY DR 6-101(A),
the Model Rule does not specifically prohibit neglect. Instead, it affirmatively
requires a lawyer to be competent.
Cross References
ABA Model Rule 1.3, Diligence, is related to the doctrine of an attorney
competence. This topic is discussed in Section 1.3:200.
Model Code Comparison
ABA Model Code DR 6-101(A) is substantially identical to NY DR
6-101(A).
1.1:200 Disciplinary Standard of Competence
Relevant Ethical Considerations
Several New York Ethical Considerations elaborate on the competency
requirements contained in NY DR 6-101.
NY EC 6-1 requires a lawyer to attain and maintain proficiency in his/her
practice. EC 6-1 allows a lawyer to accept matters which (s)he is not currently
competent to handle as long as (s)he intends to become competent to handle
them.
NY EC 6-2 advises a lawyer to attain and maintain competence by keeping
abreast of current legal developments, participating in continuing legal
education courses, and by concentrating in particular areas of the law.
NY EC 6-3 allows a lawyer to accept a matter in which (s)he is not currently
competent as long as (s)he engages in the appropriate study and investigation.
The Ethical Consideration warns, however, that this study and investigation
should not take an unreasonable amount of time.
NY EC 6-4 provides: "Having undertaken representation, a lawyer should
use proper care to safeguard the interests of the client. If a lawyer has
accepted employment in a matter beyond the lawyer competence but in which
the lawyer ex pected to become competent, the lawyer should diligently undertake
the work and study necessary to be qualified. In addition to being qualified
to handle a particular matter, the lawyer obligation to the client requires
adequate preparation for and appropriate attention to the legal work, as
well as promptly responding to inquiries from the client."
NY EC 7-8 provides: "A lawyer should exert best efforts to insure that
decisions of the client are made only after the client has been informed
of relevant considerations. A lawyer ought to initiate this decision-making
process if the client does not do so. Advice of a lawyer to the client need
not be confined to purely legal considerations. A lawyer should advise the
client of the possible effect of each legal alter native. A lawyer should
bring to bear upon this decision making process the fullness of his or her
experience as well as the lawyer objective viewpoint. In assisting the client
to reach a proper decision, it is often desirable for a lawyer to point out
those factors which may lead to a decision that is morally just as well as
legally permissible."
Relevant Ethics Opinions
Adequate Preparation May Require Retaining Interpreter: N.Y. City
Bar Op. 1995-12 (1995): "Adequate preparation" within the meaning of
DR 6-10l(A)(2) requires lawyers to gather information material to the claims
or defenses of a client. If a lawyer cannot fully understand a client because
of a language barrier, then DR 6-10l(A)(2) and EC 6-3 require the lawyer
to hire an interpreter. "When the need for an interpreter is apparent or
it is reasonable to conclude that an interpreter is required for effective
communication," failing to secure an interpreter may breach the duty to represent
the client competently.
Guidelines for Representation of Temporary Lawyer Placement Agency:
N.Y. City Bar Op. 1988-3 (1988): The inquiring lawyer wishes to represent
a "temporary lawyer placement agency" (the "Agency"), which would provide
attorneys, on a per-diem or per-hour basis, to law firms that need additional
expertise or manpower. May the inquiring lawyer properly represent the Agency?
Yes, provided the Agency follows certain "guidelines" to ensure that its
conduct and the conduct of the temporary lawyers comports with the Code of
Professional Responsibility.
One guideline is that under DR 6-101, the Agency "must agree not to
attempt to require a lawyer to handle a matter that the lawyer is unable
to handle competently," and "the law firm must investigate the competence
of the temporary lawyer, and . . ., be satisfied after investigation that
the lawyer is competent to handle the matter assigned to him." [Note: This
opinion is generally reaffirmed but partially modified in N.Y. City Bar
Ops. 1988-3A and 1989-2.]
Relevant Cases
Delegation of Responsibility: Kleeman v. Rheingold, 81 N.Y.2d 270,
598 N.Y.S.2d 149 (1993): Under DR 6-101, an attorney cannot delegate
the duty to exercise care in handling a client legal matter. Accordingly,
an attorney cannot escape liability for negligent service of process by
delegating that task to an independent process server.
Neglect: Matter of Sorid, 189 A.D.2d 377, 596 N.Y.S.2d 125 (2nd Dept.
1993): An attorney violated DR 6-101 by failing to forward a settlement
check to a client for two months, failing to retrieve the file in an estate
matter after a former employee removed it from the attorney offices, and
by failing to probate an estate within four years. See also In re Lowenthal,
132 A.D.2d 117, 521 N.Y.S.2d 721 (2d Dept. 1987), appeal dismissed, 71 N.Y.2d
888 (1988) (lawyer that violated DR 6-101(A)(3) by neglecting an estate
matter for more than seven years was suspended for two years for this and
various other rules violations).
Family Problems No Excuse For Neglect: Matter of Sexton, 231 A.D.2d
832, 647 N.Y.S.2d 587 (3d Dep't 1996) (acknowledging that attorneys must
attend to their clients' interest punctually and with vigor despite distracting
and stressful intrusions from personal and family problems or advise their
clients of their option to obtain other counsel; neglectful counsel suspended
for 6 months)
Illness Not an Excuse: Matter of Whitbread, 183 A.D.2d 347, 591 N.Y.S.2d
117 (4th Dept. 1992) (under DR 6-101, an attorney illness and divorce
do not justify the attorney neglect of legal matters and abandonment of clients;
sanction: suspended for one year.)
Depression May be Mitigating Factor: Matter of Chikofsky, 239 A.D.2d
86, 668 N.Y.S.2d 586 (1st Dep't 1998) (sanction of public censure only
despite attorney neglect and misrepresentations about status of client criminal
appeal, and his refusal to refund unearned fees, where mitigating factors
included attorney severe depression).
Primary New York References: DR 6-101, EC 6-1 - 6-4
Background References: ABA Model Rule 1.1 & 1.3, Other
Jurisdictions
Commentary:
NY Commentary: Simon N.Y. Code of Prof. Resp. Annot. (1999 ed.) Canon
6, et seq.
CALIFORNIA RULES ON LAWYER COMPETENCE
California Legal Ethics
I. CLIENT-LAWYER RELATIONSHIP
Rule 1.1 Competence
1.1:100 Comparative Analysis of CA Rule
Model Rule Comparison
CRPC 3-110 states that an attorney must not intentionally, recklessly,
or repeatedly fail to perform legal services with competence. This rule is
California’s counterpart to MR 1.1. A lawyer is competent under CRPC
3-110(B) if he uses: ?) diligence, 2) learning and skill, and 3) mental,
emotional, and physical ability reasonably necessary.CMR 1.1 defines competence
as the Legal knowledge, skill, thoroughness and preparation reasonably necessary.
CRPC 3-110, unlike MR 1.1, requires evidence that the lawyer’s
incompetence was intentional, or repeated, or a product of reckless disregard.
The California rule more accurately reflects the disciplinary practice in
other states. [See 1.1:200 Disciplinary Standard of Competence, infra, for
further discussion].
Both statutes allow attorneys to take on matters for which they lack
the learning and skill required, provided that they take necessary remedial
steps. In relevant part, CRPC 3-110(C) allows an attorney to cure a lack
of learning and skill by either associating or consulting with another attorney
reasonably believed to be competent, see CRPC 3-110(C)(1), or by ?cquiring
sufficient learning and skill before performance is required,, see CRPC
3-110(C)(2). Similarly, MR 1.1 Comment [2] allows an attorney to achieve
the requisite skill and knowledge for competence through necessary study
or the association of a lawyer of established competence.
Both MR 1.1 Comment [3] and the Drafter? Notes to CRPC 3-110 allow a
lawyer to assist a client in an emergency where referral or consultation
is impractical, despite lacking the skill ordinarily required. However, both
rules limit such emergency assistance to that which is reasonably necessary
in the circumstances. See MR 1.1 Comment [3]; CRPC 3-110 Drafter? Notes.
Model Code Comparison
DR 6-101(A) is similar to CRPC 3-110. It states that a lawyer must prepare
adequately when handling a matter, (see DR 6-101(A)(2), and must not neglect
matters, (see DR 6-101(A)(3)), which corresponds to CRPC 3-110(B) mandate
of competence). Also, the Model Code allows an attorney to take on a matter
for which he or she is not competent where (1) he or she associates a competent
lawyer, see DR 6-101(A)(1), or (2) under EC 6-3, where the attorney has a
good faith expectation of becoming qualified through study and investigation,
so long as such preparation does not result in an unreasonable delay or expense
to the client. These criteria are similar to CRPC 3-110(C) requirements for
taking on matters without sufficient learning and skill.
Unlike the Drafter’s Notes of CRPC 3-110, the DR are silent
as to providing assistance under emergency circumstances.
1.1:200 Disciplinary Standard of Competence
A lawyer’s negligence may lead to malpractice liability if it harms
the client, but discipline generally will not be meted out for isolated instances
of incompetent performance. See Trousil v. State Bar (1985) 38 Cal.3d
337, 211 Cal.Rptr. 525, 695 P.2d 1066 (lawyer suspended for 6 months
for failing to act competently in four separate matters; in each matter,
the lawyer failed to keep the client informed of the situation and often
did nothing for the client for periods as long as 29 months).
CRPC 3-110(A) states that an attorney shall not intentionally, recklessly
or repeatedly fail to perform legal services with competence.[See also 1.1:101
Model Rule Comparison, supra; 1.1:330 Standard of Care, infra]. CRPC 1-100(A)
enables the Board of Governors of the State Bar of California to discipline
members for willful breaches of any of the rules contained in the CRPC. See
also B&PC ? 6103 (any violation of an attorney’s oath or duties
is cause for disbarment or suspension).
The State Bar distinguishes between willful and negligent behavior performed
by the attorney. See Lester v. State Bar (1976) 17 Cal.3d 547, 131 Cal.Rptr.
225, 551 P.2d 841 (willful conduct consisted of attorney’s repeated
failure to perform legal services after being paid and retained); Hulland
v. State Bar (1972) 8 Cal.3d 440, 105 Cal.Rptr. 152, 503 P.2d 608, (attorney
failed to perform services he was paid to perform and made client sign a
confession of judgment for fees). Willfulness does not necessarily require
knowledge of the provision violated; rather, it requires that the attorney
knew what he was doing or not doing and that he intended either to commit
the act or to abstain from committing it. King v. State Bar (1990) 52
Cal.3d 307, 313-314, 276 Cal.Rptr. 176, 801 P.2d 419 (quoting Zitny [Zitny]
v. State Bar (1966) 64 Cal.2d 787, 792, 51 Cal.Rptr. 825, 415 P.2d
521).
California imposes discipline where the disregard of the client matter
was done willfully. Davis v. State Bar (1983) 33 Cal.3d 231, 188 Cal.Rptr.
441, 655 P.2d 1276. For examples where discipline was imposed for willful
incompetence, see King v. State Bar (1990) 52 Cal.3d 307, 314, 276 Cal.Rptr.
176, 801 P.2d 419 (decided under former CRPC 6-101 (1975), which contained
the same substantive rule as CRPC 3-110) (neglecting to serve a complaint
and summons, as well as failing to turn over former client files, violated
this rule); Drociak v. State Bar (1991) 52 Cal.3d 1085, 278 Cal.Rptr.
86, 804 P.2d 711 (attorney suspended from legal practice for one year
(stayed) and placed on probation for two years, including 30 days actual
suspension for having clients pre-sign court verifications).
See also Read v. State Bar (1991) 53 Cal.3d 394, 279 Cal.Rptr. 818,
807 P.2d 1047 (decided under former CRPC 6-101 (1975), CRPC 3-110
predecessor) (pattern of misconduct including multiple acts of bad faith,
dishonesty, concealment, and overreaching, misappropriation of funds, counseling
client to perjure herself, and client abandonment violates rule and warrants
disbarment); In the Matter of Sampson (Review Dept. 1994) 3 Cal. State
Bar Ct. Rptr. 119, 127 (failure to supervise practice and fulfill trust
fund responsibilities constituted reckless failure to perform competently)
(fourteen instances of failing to pay medical liens on clients recovery
constituted repeated failure to perform competently); In the Matter of
Broderick (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 138 (failure
to communicate with client and keep client funds safe constitutes repeated
failure to perform legal services competently). Cf., In the Matter of
Whitehead (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 354, 365-366
(decided under former CRPC 6-101 (1975), CRPC 3-110’s predecessor) (attorney
who obtained reinstatement of appeal after his neglect caused appeal’s
dismissal did not violate rule).
An attorney’s neglect of his client’s case was found to be
willful after the attorney failed to serve the complaint on a defendant for
three years. See Arden v. State Bar (1987) 43 Cal.3d 713, 239 Cal.Rptr.
68, 739 P.2d 1236. The state bar found that the act was a conscious disregard
of the requirements of professional diligence and good judgment and could
not be said to have resulted from mere inadvertence or mistake. Arden
v. State Bar (1987) 43 Cal.3d 713, 239 Cal.Rptr. 68, 739 P.2d 1236.
It is a violation of the ethical duties of attorney to fail to perform
a legal service for which attorney has been retained and to willfully fail
to communicate with a client. See Lister v. State Bar (1990) 51 Cal.3d
1117, 275 Cal.Rptr. 802, 800 P.2d 1232, (failure to communicate with
client, to protect client’s interests, to return files on demand, to
cooperate in disciplinary investigations, to withdraw from matter which attorney
knows he is incompetent to handle and to give client notice of withdrawal
from employment warrants nine month actual suspension); Harris v. State
Bar (1990) 51 Cal.3d 1082, 275 Cal.Rptr. 428, 800 P.2d 906 (attorney
found to have abandoned client who retained her to prosecute wrongful death
action, where the attorney did virtually nothing for four years except to
file and serve complaint, both on the last possible day).
A showing of willfulness is not always essential when establishing that
an attorney has improperly withdrawn from employment or failed to act
competently. The case law distinguishes between varying degrees of neglect.
For example, gross negligence, while not an intentional act of misconduct,
is still so serious as to warrant discipline and may even justify disbarment.
Walker v. State Bar (1989) 49 Cal.3d 1107, 264 Cal.Rptr. 825, 783 P.2d
184 (an attorney suffering from pancreatitis, alcohol and drug addiction,
and paranoid delusions may still have the necessary state of mind to justify
discipline by the State Bar for abandonment of practice); Simmons v. State
Bar (1970) 2 Cal.3d 719, 87 Cal.Rptr. 368, 470 P.2d 352 (attorney who
accepted fees and then failed to communicate with client three times as well
as failing to inform clients of his suspension by State Bar shows common
pattern of gross negligence and carelessness).
If an attorney essentially withdraws from representation, he is obligated
to give due notice to the client. Walker v. State Bar (1989) 49 Cal.3d
1107, 264 Cal.Rptr. 825, 783 P.2d 184. It is serious misconduct to willfully
fail to perform services for which the attorney is retained, or to willfully
fail to communicate with a client. Hunniecutt v. State Bar (1988) 44 Cal.3d
362, 243 Cal.Rptr. 699, 748 P.2d 1161. An example of willfully failing
to communicate with a client can be found in Kapelus v. State Bar (1987)
44 Cal.3d 179, 242 Cal.Rptr. 196, 745 P.2d 917 (the attorney agreed to
represent the client in a post administrative appeal suit against the federal
government, and subsequently failed to answer the client’s calls and
registered letters, and failed to send the client the file).
Gross carelessness and negligence constitute a violation of the of
attorney’s oath to discharge duties faithfully to the best of his knowledge
and ability. Further, actions of this nature show moral turpitude, and therefore
constitute a breach of fiduciary duty. Simmons v. State Bar (1970) 2 Cal.3d
719, 87 Cal.Rptr. 818, 470 P.2d 352. However, where the attorney exercises
a reasoned use of judgment, professional negligence has not been found. If
an attorney acts in good faith and in honest belief that his acts and advice
are well founded and in the best interest of his client, he will not be held
liable for mere error of judgment. In re Watts (1903) 190 U.S. 1, 47 L.Ed.
933, 23 S.Ct. 718; see also Davis v. Damrell (1st Dist. 1981) 119
Cal.App.3d 883, 174 Cal.Rptr. 257.
The following comments are taken from Karpman & Margolis
pages 4-6 with certain conforming changes:
CRPC 1-100 establishes the binding nature of the CRPC upon all members
of the State Bar and the authority of the Board of Governors to discipline
members for any willful breach.
When a lawyer serves a client both as a lawyer and as one who renders
non-legal services, he or she must conform to the CRPC in the provision
of all services. Kelly v. State Bar (1991) 53 Cal.3d 509, 280 Cal.Rptr.
298, 808 P.2d 808 (business transaction between lawyer and client) and
Layton v. State Bar (1990) 50 Cal.3d 889, 904, 268 Cal.Rptr. 845, 789
P.2d 1026 (lawyer acting as executor).
A willful breach of the CRPC does not necessarily indicate an
intent to violate ethical guidelines; it means merely that the lawyer must
have acted, or omitted to act purposely to do the act forbidden by the rule,
or not to do the act required by the rule. Willfulness may be proved by direct
or circumstantial evidence. Zitny v. State Bar (1966) 64 Cal.2d 787, 792,
51 Cal.Rptr. 825, 415 P.2d 521. See also In the Matter of Respondent
G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 181. The scope of a
lawyer? fiduciary duty may be determined as a matter of law based on the
CRPC, which together with statutes and general principles relating
to other fiduciary relationships, all help define the duty component of the
fiduciary duty that a lawyer owes to his or her client. Stanley v. Richmond
(1st Dist. 1995) 35 Cal.App.4th 1070, 41 Cal.Rptr.2d 768.
The duties to which a lawyer in this state are subject are not exclusively
delineated by the CRPC and these rules are not intended to supersede
common law obligations. Santa Clara County Counsel Attorneys Assn. v.
Woodside (1994) 7 Cal.4th 525, 28 Cal.Rptr.2d 617, 869 P.2d 1142.
Disciplinary rules, which are mandatory, state the minimum level of
conduct below which no lawyer may fall without being subject to disciplinary
action. Hawk v. Superior Court of Solano County (1st Dist. 1974) 42 Cal.App.3d
108, 116 Cal.Rptr. 713. Although a lawyer’s conduct failed to fall
squarely within the parameters of CRPC 3-310, a conflict of interest was
found where he had served on the Board of a Corporation and acquired confidences
and secrets prior to becoming a lawyer. A motion to disqualify was sustained
based upon this rule’s general prohibition against impropriety by lawyers.
Note: This opinion suggests that there may be conduct not addressed by the
rules that nevertheless can lead to liability. Allen v. Academic Games
Leagues of America, Inc. (C.D. Cal. 1993) 831 F.Supp. 785.
References
B&PC 6049.1, B&PC 6049.2, B&PC ? 6103 (defining willful
violation necessary for discipline).
Cal. Rule of Court 983(c) (counsel admitted pro hac vice subject to
the CRPC).
State Bar Court Rules of Procedure 800-806 (Chapter 16) provide for
an expedited disciplinary procedure for attorneys who have been disciplined
for professional misconduct in other jurisdictions.
The following comments are taken from Karpman & Margolis
pages 31-35 with certain conforming changes:
In a narrowly limited conflicts decision, the California Supreme Court
held that the requirement of undivided loyalty to the first client negates
any duty on the part of the attorney to inform the second client of the statute
of limitations applicable to the proposed lawsuit or even of the advisability
of seeking alternative counsel. Justice Arabian, in a 4-3 decision, stated
that the holding is confined to the circumstances typified by this case--one
in which the lawyer is confronted with a mandatory and unwaivable duty not
to represent the second client in light of an irremediable conflict with
the existing client and acts promptly to terminate the relationship after
learning of the conflict. However, the court cautioned the bar that, in the
absence of such an irreducible conflict and mandatory duty to withdraw, a
lawyer’s duty to advise a new client or even a prospective client once
the nonengagement decision has been taken, may well be more extensive. Flatt
v. Superior Court (1994) 9 Cal.4th 275, 36 Cal.Rptr.2d 537, 885 P.2d
950.
Taking no action in a case, despite receiving numerous reminders that
the matter was pending, together with inquiries from the client, satisfied
the willfulness standard of this rule. King v. State Bar (1990) 52 Cal.3d
307, 276 Cal.Rptr. 176, 801 P.2d 419 (lawyer’s failure for 3 years
to cause an action to be served on any defendant involved a conscious disregard
of the requirements of reasonable diligence and good judgment, and cannot
be said to have resulted from mere inadvertence or mistake).
A lawyer’s sudden and unannounced move from the state, even though
the move may result in abandonment of several clients, did not result in
a pattern of misconduct, but did constitute violation of this rule. Young
v. State Bar (1990) 50 Cal.3d 1204, 270 Cal.Rptr. 315, 719 P.2d 994.
A lawyer’s move from her office, without advising her clients of her
whereabouts which led to abandonment of their cases, warranted disbarment.
Read v. State Bar (1991) 53 Cal.3d 394, 425, 279 Cal.Rptr. 818, 807 P.2d
1047 (clients should not have to be forced to play hide and seek as lawyer
successively opened and closed numerous offices); see also In re Billings
(1990) 50 Cal.3d 358, 361, 267 Cal.Rptr. 319, 787 P.2d 617 (lawyer moved
office without notifying clients).
Where a lawyer failed to supervise his personal injury practice and
to fulfill trust fund responsibilities in addition to his failure to pay
medical liens, his conduct was so remiss as to be reckless. Accordingly he
violated CRPC 3-110(A). In the Matter of Sampson (Review Dept. 1994) 3
Cal. State Bar Rptr. 119.
A lawyer who did not respond to a personal injury client’s requests
for information and lost her check from an insurance company failed to perform
legal services competently and accordingly violated CRPC 3-110(A). In
the Matter of Broderick (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr.
138.
Delay in the performance in a single client’s matter may not rise
to the level of proof of reckless disregard or repeated failure to perform
legal services competently in violation of this rule. In the Matter of
Whitehead (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 354, 365-366.
However, repeated acts of negligence may justify a finding of willful violation
of this rule, In the Matter of Respondent G (Review Dept. 1992) 2 Cal.
State Bar Ct. Rptr. 175, 181, and habitual disregard by a lawyer of the
clients interests, combined with failure to communicate with such clients,
may constitute an act of moral turpitude justifying substantial discipline.
Carter v. State Bar (1988) 44 Cal.3d 1091, 1100, 245 Cal.Rptr. 628, 751
P.2d 894; Kent v. State Bar (1987) 43 Cal.3d 729, 735, 239 Cal.Rptr.
77, 739 P.2d 1244; McMorris v. State Bar (1983) 35 Cal.3d 77, 85,
196 Cal.Rptr. 841, 672 P.2d 431; In the Matter of Collins (Review
Dept. 1992) 2 Cal. State Bar Ct. Rptr. 1. Even if such neglect is grossly
negligent or careless, rather than intentional or dishonest, the State Bar
may find such conduct to involve moral turpitude warranting discipline.
Stanley v. State Bar (1990) 50 Cal.3d 555, 566, 268 Cal.Rptr. 183, 788
P.2d 697.
A lawyer’s standard of legal representation is the same regardless
if the work is performed pro bono or for a fee, see Segal v. State Bar
(1988) 44 Cal.3d 1077, 245 Cal.Rptr. 404, 751 P.2d 463, or when clients
are from high crime or poverty-stricken areas, see Blair v. State Bar
(1989) 49 Cal.3d 762, 780, 263 Cal.Rptr. 641, 781 P.2d 933.
A lawyer is not excused from failure to perform where the client allegedly
agreed that the lawyer did not have to perform unless paid in full.
Fitzpatrick v. State Bar (1977) 20 Cal.3d 73, 141 Cal.Rptr. 169, 569 P.2d
763. But see In the Matter of Kennon (Review Dept. 1990) 1 Cal. State
Bar Ct. Rptr. 267, holding that although preliminary consultations with
a client created a lawyer-client relationship, the lawyer was not culpable
of failure to perform (by not filing a lawsuit) in the absence of clear and
convincing evidence that he had agreed to do so.
If a lawyer suspects that a client’s claim is not valid, she may
not just stop work. She must fully investigate the validity of the claim,
and continue to perform until such time as she can properly withdraw. Failure
to withdraw or to take any action on the client’s case in order to avoid
prejudice, may result in violation of this rule. Guzzetta v. State Bar
(1987) 43 Cal.3d 962, 979, 239 Cal.Rptr. 675, 741 P.2d 172; see also
Davis v. State Bar (1983) 33 Cal.3d 231, 188 Cal.Rptr. 441, 655 P.2d
1276.
If a lawyer decides, for strategic reasons, to delay a client’s
case, that strategy must be communicated to the client and the client must
assent; otherwise, a violation of the rule may be found. See Calvert v.
State Bar (1991) 54 Cal.3d 765, 773-775, 1 Cal.Rptr.2d 684, 819 P.2d 424;
Hartford v. State Bar (1990) 50 Cal.3d 1139, 1149-1150, 270 Cal.Rptr.
12, 791 P.2d 598 (violation of the rule found where the lawyer’s
decision not to proceed not adequately communicated to clients).
If an impasse develops between the attorney and the client, the lawyer
may not simply fail to take action. In the Matter of Koehler (Review Dept.
1991) 1 Cal. State Bar Ct. Rptr. 615, 626.
However, a lawyer’s proper exercise of judgment in deciding not
to proceed for tactical reasons, or because to proceed would be fruitless,
does not constitute a violation of this rule. In the Matter of Respondent
C (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 439, 449-450; see also
People v. Ledesma (1987) 43 Cal.3d 171, 216, 233 Cal.Rptr. 404, 729 P.2d
839 (practically, it is often difficult for a court to second-guess a
lawyer’s tactical judgment).
CRPC 3-110(B), Lack of Competence
The California Supreme Court has in the past recognized a problem in
using disciplinary proceedings to punish lawyers for mere negligence, mistakes
in judgment or lack of experience. Lewis v. State Bar (1981) 28 Cal.3d
683, 688-689, 170 Cal.Rptr. 634, 637, 621 P.2d 258, citing to Call
v. State Bar (1955) 45 Cal.2d 104, 110-111, 287 P.2d 761; and Friday
v. State Bar (1943) 23 Cal.2d 501, 505-508, 144 P.2d 564.
However, with the enactment of former CRPC 6-101 (1975), (now CRPC 3-110)
the court had a disciplinary rule giving it the authority to discipline for
lack of legal knowledge and skill, if the attorney fails to take steps to
acquire such knowledge and skill after accepting a case. See Lewis v.
State Bar (1981) 28 Cal.3d 683, 170 Cal.Rptr. 634, 621 P.2d 258 (lawyer
who mishandled the administration of estate was disciplined, when he had
no previous experience in probate matters and failed at all times to consult
with more experienced counsel). See also Layton v. State Bar (1990) 50
Cal.3d 889, 904, 268 Cal.Rptr. 845, 789 P.2d 1026 (lawyer’s argument
that he should be held to lesser standard of competence in his handling of
an estate matter, because he was a family law specialist, rather than a probate
specialist, rejected by court).
Since a criminal defendant has a constitutional right to the effective
assistance of counsel, a conviction may be set aside and a new trial granted,
where it is shown that the defense lawyer was incompetent. People v. Pope
(1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.
When a lawyer performs in a dual capacity, i.e. performing both legal
services and services that could be performed by a layperson, the services
rendered in the dual capacity must conform to the standards of this rule.
Layton v. State Bar (1990) 50 Cal.3d 889, 904, 268 Cal.Rptr. 845, 789
P.2d 1026 (lawyer acting as executor of estate); Crawford v. State
Bar (1960) 54 Cal.2d 659, 667-668, 7 Cal.Rptr. 746, 355 P.2d 490 (title
and brokerage services); Alkow v. State Bar (1971) 3 Cal.3d 924, 92 Cal.Rptr.
278, 479 P.2d 638 (lawyer providing collection services).
Concluding that an appellant had established a prima facie case for
professional negligence, inter alia, the court emphasized that a family lawyer
had completely failed to research the standard legal materials containing
information that was important to her client’s decision with respect
to her interest in her husband’s VA pension. The court noted that this
research failure may have been a product of the lawyer’s unnecessary
rush to conclude the client’s property division, due to the lawyer’s
pending law firm merger, which in fact created a conflict of interest problem
for the lawyer. Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070,
41 Cal.Rptr.2d 768.
Violation was sustained where Respondent failed to pay five statutory
medical liens, demonstrating reckless disregard for his duty to do so. The
duty of competence is not limited to clients, and the duty extends to all
lien holders, inherent in the lawyer’s role as fiduciary with respect
to entrusted funds. In the Matter of Riley (Review Dept. 1994) 3 Cal.
State Bar Ct. Rptr. 91.
CRPC 3-110(C), Lack of Ability
A lawyer is not excused from the duty to perform competently due to
overextended workload and scheduling problems; if the lawyer is too busy
to devote proper time and attention to the client’s case, the lawyer
does not have the resources to perform and his continued acceptance of employment
violates this Rule. Blair v. State Bar (1989) 49 Cal.3d 762, 780, 263
Cal.Rptr. 641, 781 P.2d 933; Garlow v. State Bar (1988) 44 Cal.3d
689, 711, 244 Cal.Rptr. 452, 749 P.2d 1307.
Under such circumstances the lawyer should decline representation. In
the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar. Ct. Rptr. 631;
In the Matter of Collins (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr.
1, 12-13 (violation found when lawyer took on more cases than he could
handle as a sole practitioner, had many cases requiring court appearances
away from the office, had office management problems, and yet continued to
accept new clients).
Acute depression or other psychological problems can explain and mitigate,
but not excuse, violation of this rule. The State Bar court will consider
misconduct willful when the lawyer knew, or should have known, that a mental,
emotional or physical disability would affect his or her competent
representation: Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1074-1075,
264 Cal.Rptr. 439, 782 P.2d 680 (severe psychological, physical and financial
difficulties); Frazer v. State Bar (1987) 43 Cal.3d 564, 577-578, 238
Cal.Rptr. 54, 737 P.2d 1338 (periodic agoraphobia); Tenner v. State
Bar (1980) 28 Cal.3d 202, 168 Cal.Rptr. 333, 617 P.2d 486 (alcoholism);
Doyle v. State Bar (1976) 15 Cal.3d 973, 126 Cal.Rptr. 801, 544 P.2d 937
(polio); Bradpiece v. State Bar (1974) 10 Cal.3d 742, 111 Cal.Rptr. 905,
518 P.2d 337 (financial and domestic difficulties).
References
CRPC 3-400 (client may not waive a member’s duty to act competently,
whether resulting from a conflict of interest or other reason); CRPC 3-500
(failure to communicate with client); CRPC 3-700 (effectuating withdrawal
from a case).
Rule 3-110. Failing to Act Competently.
(A) A member shall not intentionally, recklessly, or repeatedly fail
to perform legal services with competence.
(B) 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.
(C) If a member does not have sufficient learning and skill when the
legal service is undertaken, the member may nonetheless perform such services
competently by
1) associating with or, where appropriate, professionally consulting
another lawyer reasonably believed to be competent, or
2) by acquiring sufficient learning and skill before performance is
required.
Discussion: Rule 3-110
[1] The duties set forth in rule 3-110 include the duty to supervise
the work of subordinate attorney and non-attorney employees or agents. (See,
e.g., Waysman v. State Bar (1986) 41 Cal.3d 452; Trousil v. State Bar (1985)
38 Cal.3d 337, 342 [211 Cal.Rptr. 525]; Palomo v. State Bar (1984) 36 Cal.3d
785 [205 Cal.Rptr. 834]; Crane v. State Bar (1981) 30 Cal.3d 117, 122; Black
v. State Bar (1972) 7 Cal.3d 676, 692 [103 Cal.Rptr. 288; 499 P.2d 968];
Vaughn v. State Bar (1972) 6 Cal.3d 847, 857-858 [100 Cal.Rptr. 713; 494
P.2d 1257]; Moore v. State Bar (1964) 62 Cal.2d 74, 81 [41 Cal.Rptr. 161;
396 P.2d 577].)
[2] In an emergency a lawyer may give advice or assistance in a matter
in which the lawyer does not have the skill ordinarily required where referral
to or consultation with another lawyer would be impractical. Even in an
emergency, however, assistance should be limited to that reasonably necessary
in the circumstances.
Primary California References: CRPC
3-110
Background
References: ABA Model
Rule 1.1, Other
Jurisdictions
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