1.1:200 DISCIPLINARY STANDARD OF COMPETENCE

• Jurisdiction: Arizona

1.1:200 Disciplinary Standard of Competence

ER 1.1 requires that, at a minimum, a lawyer who accepts an engagement by a client must have "the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." SeeToy v. Katz, 192 Ariz. 73, 85, 961 P.2d 1021, 1033 (App. 1997). Despite the fact that providing a client with competent representation is at the heart of a lawyer's professional obligations, violations of ER 1.1 appear to be one of the more frequently cited bases for discipline of Arizona lawyers. See, e.g., In re Woltman, 181 Ariz. 525, 892 P. 2d 861 (1995) (ordering disbarment based on violations of ER 1.1, among other grounds); In re Elowitz, 177 Ariz. 240, 866 P.2d 1326 (1994) (citing ER 1.1 and ordering disbarment based on "failure to diligently and competently handle legal matters," among other grounds); In re Evans, 175 Ariz. 404, 857 P. 2d 1258 (1993) (censuring respondent based on "lack of competence," among other grounds); In re Brown, 175 Ariz. 134, 854 P.2d 768 (1993) (finding that respondent "failed to provide competent representation, in violation of ER 1.1"); In re Soelter, 175 Ariz. 139, 854 P.2d 773 (1993) (similar); In re Loftus, 171 Ariz. 672, 832 P.2d 689 (1992)(similar); In re Engan, 170 Ariz. 409, 825 P.2d 468 (1992) (similar); In re Rantz, 169 Ariz. 56, 817 P.2d 1 (1991) (similar); In re Gaynes, 168 Ariz. 574, 816 P.2d 231 (1991)(similar); In re Young, 164 Ariz. 502, 794 P.2d 135 (1990) (similar).

Whether a lawyer has the requisite knowledge and skill to undertake a particular engagement depends on a variety of factors, including the lawyer's general experience, how complex or specialized the matter is, whether the lawyer is able to devote the time and effort necessary to prepare adequately, and whether the lawyer can refer the matter to an associate, or consult with or associate another lawyer of established competence in the area. A lawyer may be competent in one or more areas of the law and still lack the "requisite ability" in others. The Arizona Supreme Court has made clear, however, that the standard for imposing discipline for violating ER 1.1's competency requirement is higher than the standard for imposing malpractice liability.

In In re Curtis, 184 Ariz. 256, 908 P.2d 472 (1995), the Arizona Supreme Court censured respondent Curtis for failing to provide competent representation in violation of ER 1.1. In so holding, the court emphasized that not every instance of negligent representation gives rise to an ethical violation that will support disciplinary action:

Neither failure to achieve a successful result nor mere negligence in the handling of a case will necessarily constitute an ER 1.1 violation. We recognize the important distinction between conduct by an attorney that is simply negligent and conduct that rises to the level of an ethical violation. Clearly, the Bar must be vigilant in guarding the rights of clients, "but care should be taken to avoid the use of disciplinary action . . . as a substitute for what is essentially a malpractice action . . . ." Thus, although not every negligent act violates an ethical rule, neglect in investigating the facts and law necessary to present a client's claim crosses the fine line between simple neglect and conduct warranting discipline.

We conclude that Respondent's actions or inactions went beyond mere lack of success or an act falling below the applicable standard of care. Respondent could not provide competent representation because he failed to have, attempted to obtain, or applied the "legal knowledge, skill, thoroughness and preparation reasonably necessary" for his representation of Client in this matter…. We conclude that Respondent violated ER 1.1

Id. at 261-62, 908 P.2d at 477-78 (citations omitted) (emphasis in original).

In In re Alexander, 232 Ariz. 1, 300 P.3d 536 (2013), the Arizona Supreme Court upheld an order of the disciplinary hearing panel suspending a lawyer from law practice based in part on violations of ER 1.1, along with other ethical rules. With respect to the ER 1.1 violations, the court noted that a lawyer's negligence in handling a matter "does not necessarily constitute a violation of ER 1.1." Id. at 9, 300 P.3d at 544. The focus is "not on whether a lawyer may have neglected a particular task, but rather whether his or her representation in the 'broader context of the representation' reflects the knowledge, skill, thoroughness, and preparation that the rule requires." Id. at 8, 300 P.3d at 543. The court concluded that the lawyer had violated ER 1.1 because, among other things, she substituted as counsel in a complex litigation matter, but had "minimal litigation experience and had never tried a case." Id. Additionally, although noting that a lawyer can meet ER 1.1 by associating other lawyers with necessary expertise, the court found that this did not take place in the particular matter. The court also concluded that the lawyer failed to sufficiently investigate the factual and legal grounds for the action, which was determined to be frivolous.

ER 1.1 does not necessarily require that a lawyer have knowledge and skill in the particular area of law involved in an engagement at the time the matter is accepted, provided that the lawyer takes the necessary steps to acquire that knowledge and skill as the engagement progresses. In In re Cardenas, 164 Ariz. 149, 791 P.2d 1032 (1990), for example, the Arizona Supreme Court disbarred respondent Cardenas for failing to competently represent his client in a personal-injury matter. The court noted that respondent had accepted the engagement, even though he had no prior experience in civil cases, and admitted that he was not knowledgeable concerning civil matters. Among other violations, respondent failed to advise the client of settlement offers made by the defendants and failed to file a motion to set the certificate of readiness, with the result that the action was dismissed. In discussing why a more severe sanction than that of suspension was warranted, the court observed:

A lawyer should no more take a case for which he is not competent than a medical doctor should perform surgery for which the doctor is unprepared to perform.

In the instant case, respondent made no effort to become competent. He made no effort to educate himself as to the matter nor did he consult with a lawyer of established competence. We believe respondent was not only not competent to take the case but remained not competent to handle the matter in violation of ER 1.1 of the Rules of Professional Conduct.

Id. at 151, 791 P.2d at 1034.

Not surprisingly, published decisions that impose...