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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