CHAPTER 1 - 1-2 COMPETENCE

• Jurisdiction: United States

1-2 Competence

A lawyer must provide reasonably competent representation to a client.¹⁹ The required proficiency is that of a general practitioner.²⁰ Expertise may be required in some circumstances.²¹ The Commentary to Rule 1.1 specifically includes the need to be cognizant of "the benefits and risks associated with relevant technology."²² There is also specific language in the Commentary dealing with competence when "contracting out" legal services.²³ The rule allows a lawyer to accept a matter if the requisite level of skill can be achieved by reasonable preparation.²⁴ Incompetence must be judged on the facts of the particular case.²⁵ Incompetence sufficient to meet the standard of proof for an ethical violation may also be malpractice.²⁶

1-2:1 General Rule of Competence

Not every instance of lawyer incompetence results in a disciplinary case. Often the more egregious cases never make it to the Grievance Committee. If the matter in dispute involves a significant want of skill or care, it is most likely to be filed as a malpractice case. Most attorneys representing clients in malpractice cases do not file grievances over the conduct in question.

The rule on competence requires legal knowledge, skill, thoroughness and preparation "reasonably necessary" for the representation; it does not require perfection. This rule first appeared in its present version in the 1983 version of the Model Rules. Prior to that, the applicable rule was Disciplinary Rule 6-101A which prohibited a lawyer from taking "a legal matter which the lawyer knows or should know that he is not competent to handle, without associating with a lawyer competent to handle it." Canon 6, providing that a lawyer had an ethical duty to represent his client competently, was first added to the code in 1970.

Prior to the modern rule, some commentators even questioned whether competence was an appropriate matter for a disciplinary inquiry, believing that malpractice was a better way to address the problem of incompetence.²⁷ As a result, Professors Hazard and Hodes note that it is ironic that the rule of competence holds a place of honor as the first rule of the modern rules iteration as it has been continually criticized and as recently as the Ethics 2000 inquiry there has been a debate as to whether the rule more properly belongs joined with Rule 1.3 in a diligence treatment.²⁸

The commentary to the rule provides that in many instances the expertise required is that of a general practitioner, though specialized work may require a higher level of knowledge or expertise. A lawyer is expected to be familiar with well-settled principles of law as they relate to the client's case.²⁹ Connecticut's interpretation of the rule is generally in accord with that of other states.

A review of the many reported decisions of the Statewide Grievance Committee reveals many reported cases in which Rule 1.1 was implicated.³⁰ In most cases, the Committee's decision finding a Rule 1.1 violation is both summary and conclusory. In some cases, even a single instance of incompetence has resulted in discipline.³¹ Some states, however, require evidence of a pattern of incompetence.³²

The malpractice section of this book contains a full discussion of the quantum of proof necessary to prove a lack of competence in a tort matter.³³ The cases cited give little guidance as to the proof needed to support an incompetence finding as an ethical issue.³⁴ Most appellate cases dealing with Rule 1.1 as an ethical violation are in the nature of appeals from the imposition of lawyer discipline, but here, again, we get little guidance as to how bad the conduct must be. Further, Rule 1.1 violations are often charged in tandem with Rule 1.3 (diligence) and 1.4 (communication), making up the triad of disciplinary violations in over sixty reported cases the authors found. There is one unusual appellate case fully articulating the level of competence and skill necessary to satisfy a finding of a Rule 1.1 violation.

In Burton v. Mottolese³⁵ the Supreme Court found that the trial court had sufficient grounds in fact and law to find a violation of Rule 1.1 when it concluded that the attorney:

"lacked a basic knowledge of the rules of practice and procedure [including by way of example] the numerous motions to disqualify that the plaintiff filed with the court that did not meet the requirements of Practice Book § 1-23; her oral motions to disqualify; the lack of compliance with certain formalities when the plaintiff drafted and filed her affidavits; her failure to cease speaking, either as an attorney or when the plaintiff was testifying in her own behalf, when an objection was made; and the plaintiff's taking exception to the court's order that she answer certain questions when the necessity of taking an exception was eliminated from the rules of practice."

Few malpractice or discipline cases contain the litany of misconduct found in Burton. Regardless of the wisdom of treating incompetence as a matter of ethics, the rule of competence remains a part of the lawyers' code. Professors Hazard and Hodes note, perhaps correctly, that the moral justification for having a rule of competence is that in most instances, a want of knowledge almost always results from a failure to seek it. "Every lawyer who has been admitted to practice is capable of competence; those who fail to maintain competence are at fault and can accordingly be made answerable."³⁶

1-2:2 Relationship Between Ethical Competence and Malpractice, Breach of Fiduciary Duty or Ineffective Assistance of Counsel

Though most grievances involve issues of communication and diligence, a significant number of discipline cases involve incompetence claims. Discipline cases are easy to file and there is no entry fee. The system is designed as an institutional inquiry into the lawyer's conduct and not as an adversarial proceeding between the complaint and the respondent lawyer.³⁷ In a grievance case, the matter is prosecuted by the Disciplinary Counsel³⁸ and the client/complainant's role is really just that of witness. Thus, the grievance process makes it easy for an unhappy client to raise claims of incompetence or other misconduct and provides them with what is essentially free representation.

Most clients do not have the ability to judge competence. Often, the finding of a competence issue results from the grievance panel's review and investigation of the matter and not a complaint by the client that the lawyer was incompetent. While a lawyer's deviation from the standard of care and practice is the core of the tort of malpractice, it may also be an ethical violation. The relationship of the two concepts—malpractice and ethical violation—are touched upon in the Scope section of the Rules of Professional Conduct.

The Scope section of the Preamble to the Rules of Professional Conduct provides that "violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached." However, the text goes on to note that "since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct."³⁹ An example may be found in Beverly Hills Concepts v....