The Duty of Competence in the New Normal
| Publication year | 2021 |
| Pages | 40 |
PROFESSIONAL CONDUCT AND LEGAL ETHICS
BY WILLIAM D. HAUPTMAN AND KENDRA N. BECKWITH
This article discusses the ethical duty of competence and how lawyers can satisfy it when the legal profession or their practices change.
The year 2020 was one of upheaval. The COVID-19 pandemic and resulting economic recession pushed lawyers to the brink, both professionally and personally, testing their resilience in new and unexpected ways. At the same time, a nationwide civil rights movement brought once-in-a-generation legislative reform in Colorado, and a presidential election transferred power to another political party. Cumulatively, these events led some lawyers to transition to new jobs, resulted in others seeking different career paths, and forced all to adjust to a "new normal" for die practice of law.
Lawyers now find themselves in uncharted territory. The pandemic has created new substantive laws and forced lawyers to deal with new realities as to where and how they practice. These shifts trigger important ethical considerations for lawyers, such as whether they are equipped to transition from one area of law to another, to address new trends or theories in the law, or to abandon brick-and-mortar office space for the flexibility of a virtual practice.
This article provides a framework for answering such questions under the Colorado Rules of Professional Conduct (Rules). It first examines Rule 1.1 's duty of competence and the consequences of deviating from it. The article then discusses issues that may arise when the legal profession or a lawyer's practice changes and offers strategies for ethically managing those issues. Finally, the article discusses how to competently handle technology and practice management when running a virtual practice.
Overview of the Duty of Competence
Rule 1.1 states that a lawyer "shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." This was not an explicit ethical requirement until the 1970s, when the American Bar Association's (ABA) Model Code of Professional Responsibility became widely adopted.[1]
The Rules do not define "competent."[2] Rule 1.1 's comments, while not binding, provide guidance on its meaning and application.[3] The comments explain that competence requires the proficiency of a general practitioner.[4]Thus, basic skills like analyzing precedent and legal drafting are required and expected, while special training or prior experience with a legal problem is not. A lawyer can provide adequate representation in a novel field through study or association with "a lawyer of established competence."[5]A lawyer's failure to comply with duties under other ethics rules may constitute a lack of competence.[6]
Deviating from Rule 1.1
There are regulatory consequences for breaching Rule 1.1 's duty of competence. Under the Rules, the "[f]ailure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process."[7] Whether discipline is warranted, and the severity of the sanction, depend on the circumstances.[8] Uniform standards and a large body of case law offer insight into what sanction might apply.
Colorado courts and the Office of die Presiding Disciplinary Judge (PDJ) rely on die ABA Standards/or Imposing Lawyer Sanctions (ABA Standards)[9] when imposing or reviewing sanctions for lawyer misconduct.[10]Under die ABA Standards, die presumptive sanction depends on die lawyer's mental state, die seriousness of t he misconduct, and the amount of harm to the client.[11] On one end of the spectrum, lawyers who fail to "understand the most fundamental legal doctrines or procedures" and cause actual or potential injury to a client can be disbarred.[12] On the other end, lawyers who engage in an isolated instance of negligence in determining their competence to handle a matter and cause little or no actual or potential injury to the client might receive only an admonishment.[13] Conduct that falls in between generally warrants suspension or reprimand.[14]
Cases involving failures of competence arise in Colorado with some frequency. Since 2020, a lawyer's competence was at issue (either in charged Rules violations or because the PDJ was considering prior misconduct) in at least five published disciplinary proceedings.[15]Going back five years, competence was at issue for the same reasons in about 32 PDJ opinions.[16] These cases reveal that lengthy suspensions—ranging from 30 days to an indefinite term, and often exceeding one year—are routinely imposed for lack of competence.
With some frequency, the lawyer sanctioned for breaching the duty of competence ventured into a new practice area without making adequate preparations or taking other measures to ensure competence. For example, the PDJ has sanctioned lawyers who filed actions of a type they had never filed before and which they admitted they should not have filed,[17]represented clients without properly analyzing relevant law and procedures,[18] did not affiliate with more experienced counsel when representing a client in a complicated matter outside their experience,[19] or waded into civil litigation involving a technical subject matter despite being unfamiliar with it and having experience primarily in criminal or immigration matters.[20]
Violating Rule 1.1 in this manner can result in more than regulatory sanctions. Although a Rules violation does not by itself give rise to a civil cause of action or create a presumption of die breach of a legal duty,[21] "a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct,"[22]and a lawyer who does not"employ that degree of knowledge, skill, and judgment ordinarily possessed by members of die legal profession" can be liable for malpractice.[23] The interplay between die Rules and die law of legal professional liability—which itself is addressed in a whole body of case law—is outside this article's scope.
Competence in Application
The following examples illustrate how issues involving competence and other ethical obligations can arise when the legal profession is changing or when a lawyer's practice changes.
COVID-19's Novel Legal Issues
The COVID-19 pandemic created a number of novel employment issues. Consider a lawyer who provides general advice to business or government clients on matters such as employment disputes and contract negotiations. As die client prepares for its employees to return to the office, a new issue arises: It wants to explore implementing a COVID-19 vaccination requirement for its employees and wants to know what could happen if an employee objects to this requirement. What might the lawyer do to comply with Rule 1.1 in advising the client on those topics?
The lawyer must take steps to attain competence in the new subject matter.[24] A lawyer's decision to enter a new practice area without taking adequate measures to attain competence is a key factor that regulatory bodies consider in evaluating Rule 1.1 violations.[25] The Rules advise, and case law confirms, that a lawyer can provide competent representation in a new field through study or the association with a lawyer already competent in the field.[26]In this situation, consulting counsel competent in the areas of health and privacy law might be prudent.
Dabbling in a New Practice Area
A lawyer exploring a new practice area must be mindful not only of die duty of competence but also of related ethical issues. Consider a lawyer who decides to represent a client in a matter outside of die lawyer's area of expertise. To attain die requisite proficiency, the lawyer consults with another lawyer who is more experienced in that area, which the Rules and case law suggest is sufficient to satisfy the lawyer's duty of competence.[27]
But competence is not the only applicable ethical requirement. If the more experienced lawyer practices at a different firm, the less experienced lawyer must also comply with Rule 1.6's requirement to protect client confidences during the consultation.[28] Similarly, the more experienced lawyer should be mindful that, depending on the depth of the information that the less experienced lawyer discloses under Rule 1.6, the more experienced lawyer may be disqualified from future representations adverse to the less experienced consulting lawyer's client.[29] Even if there is no prior conflict issue, a lawyer-as-witness issue could arise under Colo. RPC 3.7.[30] Regardless, these examples show that lawyers must be mindful that their efforts to attain competence can trigger other thorny issues.
High Caseloads
Changing times may cause caseload spikes, especially for government and public interest lawyers, as witnessed recently. At his February 18, 2021 State of the judiciary address, Chief Justice Boat right warned of "an unprecedented backlog of jury trials."[31]Because the pandemic effectively halted in-person trial court proceedings, a "tsunami of jury trials" awaits.[32]Currently, there are between four and five times as many criminal jury trials scheduled than are typically tried in a year.[33] And speedy trial rights,[34] which require prioritization on court dockets, complicate this situation.
The forthcoming surge of jury trials will no doubt give rise to competence and other ethical issues as lawyers are pressed to meet deadlines.[35]Neither Rule 1.1, which requires lawyers to provide competent representation, nor Rule 1.3, which requires lawyers to act with reasonable diligence, has an exception for lawyers with significant caseloads. And although a lawyer can avoid appointment by a tribunal to represent a client if the representation will likely "result in violation of the...
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