9.01. Introduction

Competence, diligence, and communication. These are fundamental obligations that a lawyer owes to a client. It is no accident that these are the first (1.1), third (1.3) and fourth (1.4) rules in the Rules of Professional Conduct. Understanding these rules can go a long way to ensuring that your clients remain happy, and you remain complaint free. To this end, the readings for this topic are reflections on what it means to be a competent and diligent lawyer. Although these issues may seem straightforward, the reality is that they pose recurring challenges for lawyers. For example, consider technology. During litigation, parties are entitled to exchange relevant documents. What if those documents are stored electronically? Do you have enough technological savvy to understand how your client’s computer system works so you can retrieve electronic documents from the system or to advise your client of what has to be retained? How can you ensure that client confidential information is secure from hackers and other security threats?

This topic also covers the constitutional obligation of competence in criminal cases. This adds another dimension to the analysis. You will see that “ineffective assistance of counsel” (that is, counsel that is so incompetent it likely impacts the outcome of the case), is much more difficult to prove than a violation of the ethical rules. We will read/discuss the most important case in this area, Strickland v. Washington. Hopefully, after our discussion, you will understand where the constitutional basis for competent counsel comes from, what is required to satisfy that standard, and the consequences if the standard is breached. Being able to compare the constitutional aspects of competence with the ethical obligations can be very helpful to avoid incompetence in all areas of practice.

We will also discuss the duties of communication and diligence. Failure to communicate is the most commonly reported basis of client dissatisfaction. Let me stress – you need to have a system in place to keep client informed. Lack of communication can lead not only to dissatisfaction but also to misunderstandings, disciplinary complaints and possibly even malpractice actions. Be proactive.