Klein & Wilson

Failing to Perform Competently Can Subject Attorneys to Discipline

Lawyers get sued for malpractice all the time, but it is rare for the California State Bar to discipline lawyers for incompetency. Nevertheless, California Rules of Professional Conduct, rule 1.1, entitled "Competence," addresses this issue.

By way of background, lawyers act "negligently" (and can be found liable for damages) if they fail "to use the skill and care that a reasonably careful attorney would have used in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as 'the standard of care.'" CACI 600. In legal malpractice cases, juries are asked to "determine the level of skill and care that a reasonably careful attorney would use in similar circumstances based only on the testimony of the expert witnesses" who testify. Id. 

Rule 1.1 picks up where CACI 600 ends. Attorneys "shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence." The rule defines competence as applying "the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service." In short, this is the same as the "standard of care" discussed in CACI 600.

The rule does not require that attorneys be "competent" immediately upon retention. The rule permits attorneys to consult with or associate other competent attorneys into the client's matter. The rule also allows attorneys to get competent by "acquiring sufficient learning and skill before performance is required." In other words, attorneys can implement the skills they learned in law school - crack the books and figure out how to take care of the client. If the attorney is unable to competently represent the client, the attorney should reject the representation. If the lawyer knows another competent attorney who can handle the matter, then it's permissible to refer the client to that other attorney. The rule gives attorneys a pass to provide advice in an unfamiliar area in an "emergency."

Some attorneys are too confident and refuse to seek counsel from other attorneys (or perform the necessary research) before accepting cases outside their practice area. It's permissible to accept cases outside your comfort area, but do so with caution. Your first criminal matter probably should not be a first degree murder case where the prosecution seeks the death penalty. Finally, if you decide to refer a case to a colleague, you can ethically do so only if you "reasonably believe" that attorney to be competent. Referring a case to an incompetent friend can subject you to a claim for "negligent referral" and State Bar discipline.

Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2018 SuperLawyers Top 50 Orange County list. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law.

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