Principles Of Professional Conduct – Competence
The preamble of the Model Rules of Professional Conduct describes a lawyer and member of the legal profession as “. . . a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” One primary principle of the Model Rules is that a lawyer must be competent as a representative of clients.
In 2018, the California Supreme Court issued an order that approved 69 Rules of Professional Conduct for California attorneys, rejecting only one. These new rules became effective in November of 2018 and closely follow the ABA Model Rules of Professional Conduct, especially in organization and structure. The order finally allowed California to join its 49 sister states who modeled their rules on the ABA’s Rules.
The California Rules of Professional Conduct (the “Rules”) have been adopted by the Board of Governors of the State Bar of California and approved by the Supreme Court of California according to code sections of the Business and Professions Code. The Rules are intended to regulate the professional conduct of members of the State Bar, protect the public, and promote respect and confidence in the legal profession.
The fact that an attorney has engaged in conduct that may be contrary to the Rules does not automatically give rise to a civil cause of action. However, willful violations form the basis for discipline under the Rules.
In California, Rule 1.1 states that a lawyer may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. Under the rules, “competence” is defined in any legal service as the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service. This rule addresses only a lawyer’s responsibility for his or her own professional competence and not a lawyer’s disciplinary responsibility for supervising subordinate lawyers and nonlawyers.
If a lawyer does not have the sufficient learning and skill at the time when asked to perform legal services, the lawyer may acquire sufficient learning and skill before performance is required, or refer the matter to another lawyer whom the lawyer reasonably believes to be competent. The lawyer may also still provide competent representation by (i) associating with or, where appropriate, professionally consulting with another lawyer whom the lawyer reasonably believes to be competent.
In emergency situations, a lawyer may give advice or assistance in matters in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in any emergency must be limited to that advice or assistance reasonably necessary under the circumstances.
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