9.02. Competence [Rule 1.1]

The ethical obligation of competence is a relatively recent occurrence.  It has been in the ethics rules only about fifty years (remember – the first set of ABA ethics rules was adopted in 1908).  Prior to that time, it was presumed that an attorney who passed the bar exam was competent to handle matters in the state.  The only option available to the client was a malpractice action, and those claims were difficult to bring because lawyers resisted bringing lawsuits against other lawyers and difficult to prove (remember the “case-within-a-case” requirement to establish proximate cause?).  The adoption of the ethical obligation of competence was a recognition that merely passing the bar exam is not sufficient to ensure competence.

Rule 1.1 requires a lawyer to provide “competent representation” and defines competence as having the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 

The first element of competence is the knowledge and skill of the lawyer.  The general rule is that, in most situations, a lawyer is competent if she has the skills of a general practitioner – although certain types of cases may require a greater expertise. [1] The ethics rules in existence prior to the Model Rules – the Model Code of Professional Responsibility – provided “a lawyer generally should not accept employment in any area of the law in which he is not qualified.”[2]  As you can imagine, such a restriction proved problematic for new lawyers.  All lawyers have their first case in an area, and if a lawyer can only be competent if they have experience, no lawyer would be competent to take their first case in an area.  The current Model Rules address this issue in Comment [2], providing: 

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.     

The Comments make it clear that what important is the lawyer’s ability to obtain competence either through education or by associating a lawyer with experience.  It is important that a lawyer new to an area be realistic about their ability to become competent.  Just because a new lawyer can take a case, does not mean that they should.

There are a few basic characteristics of the ethical obligation of competence.  First, a lawyer should be familiar with well-settled principles of law.  So, for example, a lawyer who does not know a clear statute of limitations has acted incompetently.  Similarly, competence requires a lawyer to have the skills to perform basic legal research to discover clear points of law.  Notice two things about the scope of the competence obligation.  First, a lawyer is not incompetent if they act in an area of law that is uncertain or ambiguous – even if their interpretation is later determined to be incorrect.  Second, competence really focuses on application of the basic skills necessary to become familiar about an area of law.  The bar is not high, but failure to satisfy the standard can result in real harm to the client.  

One issue that a new lawyer faces is how to become competent.  For a new lawyer in a firm, more senior attorneys can act as mentors to new lawyers to assist them in maintaining competence.  New lawyers who hang out a shingle do not have this support system and face unique difficulties in ensuring competence.  A few pieces of advice for all lawyers just starting out, but especially those starting their own firm.  First, take time to read through the ethical rules and familiarize yourself with the ethics opinions issued by the state bar.  Bar associations usually have an index listing the opinions by topic.  Read through those topics so you know the issues that were important enough to justify an opinion and come back to these opinions when an issue comes up in your practice.

Solo practitioners may not know an attorney to consult with when first starting out, so networking is important.  Get involved in state and local bar associations.  For the most part lawyers want to help other lawyers – especially young lawyers.  These connections can really pay dividends as you mature in your practice.  Another idea is to subscribe to list serves focusing on more general groups (ex. solo practitioners) or more specific practice areas (ex. real estate).  Often, these groups invite subscribers to submit questions or issues to the group, and they often provide the collective knowledge of several attorneys.  They can really be invaluable.

A couple more thoughts for a new lawyer.  First, be responsive to court guidance.  Most judges want to help a new lawyer learn the ropes.  If you go in humble and receptive to advice, a judge will likely provide helpful guidance – especially on court procedures.  This does not mean that a new lawyer should not locate and study court rules before appearing in any courtroom – you should – but it does mean that you should be receptive to the advice and cues that a judge gives you.  Second, be aware that your client does not want to pay for you to learn the basics in an area of law.  While it might be ethical to do so, be aware that a client may balk at what they consider an excessive amount of time researching an area of law. 

For lawyers going into a firm, my advice is just the opposite.  You need to bill every hour you work on a file.  It is up to the supervising attorney to determine how many of those hours to bill the client.  In my experience, a new lawyer in a firm is more likely to be questioned for not putting down hours spent on a matter than for underreporting.   There may be a tendency for the new lawyer in the firm to say “it should not have taken me this long to do this so I’m going to cut my own hours” – resist that urge.  Finally, when you are in over your head, get help, and tell the truth.  Deception only leads to more deceptive conduct, each step leading to worse consequences.  Remember the Watergate Rule:  the cover-up is almost always worse than the crime.    

[1] ABA Rule 1.1, Comment [1].

[2] Model Code of Professional Resp. EC 6-3.