Supreme Court Amends Rule Of Professional Conduct Related To Competence
The California Supreme Court approved the amendment of Rule 1.1 of the Rules of Professional Conduct. The new version of the Rule went into effect on March 22, 2021. The new version of the Rule contains a new Comment providing that a lawyer’s duty of competence encompasses a duty to keep abreast of the changes in the law and law practice, including the benefits and risks associated with relevant technology.
The Rule reads as follows:
Rule 1.1 Competence
(a) A lawyer shall not intentionally, recklessly, with gross negligence, 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 (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.
(c) If a lawyer does not have sufficient learning and skill when the legal services are undertaken, the lawyer nonetheless may provide competent representation by (i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes* to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes* to be competent.
(d) In an emergency a lawyer may give advice or assistance in a matter 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 an emergency must be limited to that reasonably necessary in the circumstances.
Comments
[1] The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology. This text has been added to the Rule.
[2] This rule addresses only a lawyer’s responsibility for his or her own professional competence. See rules 5.1 and 5.3 with respect to a lawyer’s disciplinary responsibility for supervising subordinate lawyers and nonlawyers.
[3] See rule 1.3 with respect to a lawyer’s duty to act with reasonable diligence.
Comments were solicited from California’s legal community through May 18, 2020. The amendment is an attempt to ensure that a lawyer does not allow any technical aspect of his or her practice to become technologically obsolete. And that a lawyer is aware of the risks and benefits of any technology associated with the practice of law. The Rule also further delineates the duty to not only stay current on the law but also the practice of law, including the effects and potential effects of technology thereon.
The Board of Trustees has statutory authority to adopt amendments to the California Rules of Professional Conduct. These Rules are binding on attorneys once approved by the Supreme Court of California. The ability to receive comments online has greatly facilitated the process of collecting feedback on suggested amendments to the California Rules of Professional Conduct. Through this process, commenters may add attachments to their comment letters and make an extensive contribution to improving the Rules.
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