It is clear that, as part of the agency relationship and the duty of loyalty to the client, an attorney has an obligation to perform the work required for the client and to do so competently while keeping the client informed. These obligations are currently found in the Model Rules in Rules 1.1-1.4.
Historically, competence was not viewed as an ethical or professional responsibility concern. It was not until the adoption of the Code of Professional Responsibility in 1969 that competence was "explicitly made a professional obligation." Comment to Model Rule 1.1, Proposed Final Draft, Model Rules of Professional Conduct (May 30, 1981). Even then, while the incidence of complaints against attorneys regarding incompetence and neglect was high, the incidence of discipline was not, and what discipline was imposed was generally not severe.
In recent years, however, the incidence and severity of discipline for incompetence and neglect has increased. The seriousness of the problem of attorney competence is reflected in the placement of the rule relating thereto as the first of the new Model Rules, (see 1. 1) , a placement that Robert Kutak, chairman of the ABA Commission on the Evaluation of Professional Standards, characterized as "no accident." Remarks to the 10th Annual Conference of the National Association of Law Placement, June 15, 1981, at 13.
This chapter will explore what is meant by competence and neglect, what obligations a lawyer has in dealing with client property and funds, what sanctions can be imposed for violations of these obligations, and what can be done in law office practice to avoid exposure in these areas.
Read Model Rule 1.1 and Commentary.
While lawyers may face sanctions for incompetence and neglect, there had been little written until the early 80's regarding what constitutes competence. One attempt at a comprehensive definition of competence appeared in the ALI-ABA Committee on Continuing Professional Responsibility Discussion Draft, "A Model Peer Review System." That Report defined legal competence as follows:
Legal competence is measured by the extent to which an attorney (1) is specifically knowledgeable about the fields of law in which he or she practices, (2) performs the techniques of such practice with skill, (3) manages such practice efficiently, (4) identifies issues beyond his or her competence relevant to the matter undertaken, bringing these to the client’s attention, (5) properly prepares and carries through the matter undertaken, and (6) is intellectually, emotionally, and physically capable. Legal incompetence is measured by the extent to which an attorney fails to maintain these qualities.
What do you think of this definition? Does it capture all the elements of competent performance as an attorney? Is competence more of function of knowing what to do or actually getting the job done? The Report notes the importance of "knowledge, skill, care and performance." How important is each of these? What about motivation, and where does it fit into the equation? What other factors are relevant, and how are they weighed?
The A.B.A. Section of Legal Education and Admission to the Bar, in its Report and Recommendations of the Task Force on Lawyer Competency: the Role of the Law Schools (1979) [often referred to as the Cramton Report in recognition of the Chairman, Roger Cramton], noted:
Too much of the discussion of the "problem of lawyer incompetence" has failed to distinguish between competence and performance. Inadequate lawyer performance --- the failure to meet a satisfactory standard in some task undertaken for a client --- is not synonymous with lawyer incompetence. Competency properly refers to an individual’s capacity to perform a particular task in an acceptable manner. A lawyer’s actual performance may fall short of the appropriate standard for any number of reasons unrelated to competence: inattention, laziness, the press of other work, economic factors, or mistake. Indeed, available evidence suggests that reasons such as these, not a lack of capacity to do a proper job (incompetence in the narrow sense), are the cause of most instances of lawyer failure.
The Task Force then went on to address the "components of lawyer competence." It concluded:
The Task Force believes it useful to view lawyer competence as having three basic elements: (a) certain fundamental skills; (b) knowledge about law and legal institutions; and (c) ability and motivation to apply both knowledge and skills to the task undertaken with reasonable proficiency.
Is it helpful to identify the characteristics of competent performance and encourage that lawyers conduct their practices in conformance therewith? The ALI-ABA Report attempted to do so. It identified ten criteria which it felt "give more specific content to the concept of legal competence." The first four were viewed as broad types of work performed by attorneys and were "most important in that they directly reflect the attorneys ultimate performance --- his or her output as a professional." The remaining six were viewed as "qualities or activities which tend to promote competent performance." The Committee Report defined each one, then provided commentary and illustrative indicators. The ten criteria are as follows: information gathering, legal analysis, strategy formation, strategy execution, following through, practice management, professional responsibility, practice evaluation, training and supervising support personnel, and continuing attorney self-education.
Are the various standards discussed above helpful? For what purpose? Are the standards for "competence" the same when dealing with malpractice liability and discipline? Should they be? In thinking about competence, should we view it from the client’s perspective? What do clients think they are getting when they buy a lawyer’s services? What should they have a right to expect?
The meaning of competence, and the related requirements of diligence and communication, are important in the abstract, but are even more crucial when we are attempting to define and deal with incompetence and neglect, the subject of the following section.