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Competence & Malpractice · 6-12% of the exam

11.1.1Competence to Undertake Representation (Rule 1.1)

Why

A client who retains a lawyer trusts that the lawyer already has the knowledge and skill the matter demands. Without a threshold requirement, clients unknowingly bear the risk of inadequate representation from the moment they sign the retainer.

Plain English

Before accepting a matter, ask whether you have the legal knowledge, skill, thoroughness, and preparation the KSTP mnemonic captures. Comment [5]: competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners; it also includes adequate preparation. Comment [1]: in many instances the required proficiency is that of a general practitioner. Comment [2]: a newly admitted lawyer can be as competent as a practitioner with long experience.

When competence is missing at the outset, Rule 1.1 leaves the routes open rather than listing or counting them. Among them:

  1. associate with, or consult, a lawyer of established competence in the field;
  2. get there through necessary study or reasonable preparation;
  3. in an emergency, give advice or assistance where referral to, or consultation or association with, another lawyer would be impractical, limited to what is reasonably necessary in the circumstances; or
  4. decline or withdraw where the required competence cannot be reached.

Retaining or contracting with a lawyer outside your firm is a separate step with its own two duties: you must reasonably believe that lawyer's services will contribute to the competent and ethical representation of the client, and you should ordinarily obtain the client's informed consent. Client consent can't substitute for actual competence; a lawyer who proceeds incompetently faces discipline regardless of agreement or outcome.

Rule 1.1 — Competence

Competence is the legal knowledge, skill, thoroughness, and preparation (KSTP) reasonably necessary for the representation.

Where the bar sits, and what thoroughness and preparation demand:

  • Comment [1]: in many instances the required proficiency is that of a general practitioner; expertise in a particular field of law may be required in some circumstances.
  • Comment [2]: a lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar, and a newly admitted lawyer can be as competent as a practitioner with long experience.
  • Comment [5]: competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners; it also includes adequate preparation.

The required level scales with the matter — two ends of one range:

  • Comment [5]: major litigation and complex transactions demand more.
  • Routine matters demand less.

Rule 1.1 neither lists nor counts the ways an absent initial competence may be supplied. Among them:

  • Comments [1] and [2] — Associate with, or consult, a lawyer of established competence in the field. Consultation or association alone carries no consent duty.
  • Comment [6] — Retain or contract outside the firm: before you retain or contract with a lawyer outside your own firm to provide or assist in providing legal services to the client, you must reasonably believe that the other lawyer's services will contribute to the competent and ethical representation of the client, and you should ordinarily obtain the client's informed consent. Comment [7]: when lawyers from more than one law firm are serving the client on one matter, they ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them.
  • Comment [2] — Learn: adequate representation in a wholly novel field can be provided through necessary study. Comment [4] permits accepting a matter where the requisite level of competence can be achieved by reasonable preparation. What the client may be billed for that study is a separate question, answered by Rule 1.5(a)'s reasonableness standard — see Chapter 5.
  • Comment [3] — Emergency: a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, assistance should be limited to that reasonably necessary in the circumstances.
  • Decline or withdraw where the required competence cannot be reached.

No exception for consent: a lawyer who proceeds incompetently is disciplinable regardless of causation, financial loss, or client consent.

Example 1

Ex. 1

Ana, a solo practitioner, agreed to defend Ben on a federal securities-fraud charge. It was her first criminal matter. Ben signed a written acknowledgment that he understood Ana had no criminal defense experience and agreed to proceed anyway. Ana spent two weeks studying the area but missed a Fourth Amendment suppression argument found in the opening pages of a leading criminal procedure treatise. Ben was convicted; the argument would have been colorable.

Ana is disciplinable under Rule 1.1. Ben's acknowledgment doesn't satisfy the competence standard. Missing a basic argument from the first accessible secondary source shows the reasonably necessary threshold wasn't met. Harm, conviction, and client consent are all irrelevant to discipline. Compare two weeks of study with an argument sitting in the treatise's opening pages — that gap is what "reasonably necessary" measures.

Example 2

Ex. 2

Carla, unfamiliar with trademark law, took on a registration matter for Dan without conducting a clearance search, relying on a general-practice handbook five years out of date. The trademark office approved the application on its merits. The bar opened a disciplinary inquiry. That Dan's application succeeded doesn't shield Carla: Rule 1.1 requires the knowledge and preparation reasonably necessary for the representation; a favorable result doesn't retroactively supply missing competence. Judge Carla on the clearance search she skipped, not on the approval that followed.

Trap

Trap

Tip

Questions · 4

Q 01ch11-e01

Question 1 of 4 · Rule 1.1

Attorney had spent a decade preparing residential closing documents and had never tried a case. Company, facing a multi-party construction-defect suit involving competing engineering experts and a two-week jury trial, asked Attorney to serve as lead trial counsel. Attorney accepted the engagement and signed a retainer the same afternoon. Attorney arranged no association with a trial lawyer, set aside no time to study the field, and faced no emergency that made a referral impractical. Before signing, Company's president had put in writing that Company understood Attorney had never tried a case and wished to proceed anyway. Trial was still eleven months away, and nothing in the case had yet gone wrong. Is Attorney subject to discipline?

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11.1.1 Competence to Undertake Representation (Rule 1.1) · Chapter 11 · Open Bar Review