RULE 1.1: COMPETENCE
(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
(b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.
(c) A lawyer shall not intentionally:
(1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or
(2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.
Comment
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to associate with a lawyer of established competence in the field in question. 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. One such circumstance would be where the lawyer, by representations made to the client, has led the client reasonably to expect a special level of expertise in the matter undertaken by the lawyer.
[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. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kinds of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
[3] [Reserved.]
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[4] A lawyer may accept representation where the requisite level of competence can be achieved by adequate preparation before handling the legal matter. This applies as well to a lawyer who is appointed as counsel for an unrepresented person.
Thoroughness and Preparation
[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 attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c).
Retaining or Contracting with Lawyers Outside the Firm
[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and should reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(g) (fee sharing with lawyers outside the firm), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the needs of the client; the education, experience and reputation of the outside lawyers; the nature of the services assigned to the outside lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.
[6A] Client consent to contract with a lawyer outside the lawyer’s own firm may not be necessary for discrete and limited tasks supervised closely by a lawyer in the firm. However, a lawyer should ordinarily obtain client consent before contracting with an outside lawyer to perform substantive or strategic legal work on which the lawyer will exercise independent judgment without close supervision or review by the referring lawyer. For example, on one hand, a lawyer who hires an outside lawyer on a per diem basis to cover a single court call or a routing calendar call ordinarily would not need to obtain the client’s prior informed consent. On the other hand, a lawyer who hires an outside lawyer to argue a summary judgment motion or negotiate key points in a transaction ordinarily should seek to obtain the client’s prior informed consent.
[7] When lawyer from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other about the scope of their respective roles and the allocation of responsibility among them. See Rule 1.2(a). When allocating responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations (e.g., under local court rules, the CPLR, or the Federal Rules of Civil Procedure) that are a matter of law beyond the scope of these Rules.
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[7A] Whether a lawyer who contracts with a lawyer outside the firm needs to obtain informed consent from the client about the roles and responsibilities of the retaining and outside lawyers will depend on the circumstances. On one hand, of a lawyer retains an outside lawyer or law firm to work under the lawyer’s close direction and supervision, and the retaining lawyer closely reviews the outside lawyer’s work, the retaining lawyer usually will not need to consult with the client about the outside lawyer’s role and level of responsibility. On the other hand, if the outside lawyer will have a more material role and will exercise more autonomy and responsibility, then the retaining lawyer usually should consult with the client. In any event, whenever a retaining lawyer discloses a client’s confidential information to lawyers outside the firm, the retaining lawyer should comply with Rule 1.6(a).
[8] To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R. Part 1500.
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RULE 1.3: DILIGENCE
(a) A lawyer shall act with reasonable diligence and promptness in representing a client.
(b) A lawyer shall not neglect a legal matter entrusted to the lawyer.
(c) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but the lawyer may withdraw as permitted under these Rules.
Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. Notwithstanding the foregoing, the lawyer should not use offensive tactics or fail to treat all persons involved in the legal process with courtesy and respect.
[2] A lawyer’s work load must be controlled so that each matter can be handled diligently and promptly. Lawyers are encouraged to adopt and follow effective office procedures and systems; neglect may occur when such arrangements are not in place or are ineffective.
[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.
[4] Unless the relationship is terminated, as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. If a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, Rule
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1.16(e) may require the lawyer to consult with the client about the possibility of appeal before relinquishing responsibility for the matter. Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.
[5] To avoid possible prejudice to client interests, a sole practitioner is well advised to prepare a plan that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.
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WASHINGTON PRO BONO EQUITY TRAINING GUIDE:
Race Equity & Cultural Competency Curriculum for Volunteer Lawyers
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TABLE OF CONTENTS
Purpose of the Training Guide 3 Curriculum Partners 3 Licensing and Attribution 3 Part I: Why an Equity Mindset is Critical for Volunteer Attorneys 4 Our Role as Stewards of the Justice System 5 Special Duty of Attorneys Engaging with Low-Income Clients 5 Race, Poverty, & the Law 6 Historical Context 7 Part II: Foundational Equity Concepts 10 Race & Racism 11 Equity 11 Five Levels of Equity Work 12 Additional Definitions 13 Part III: Addressing Implicit Bias, Internalized Racism, & Microaggressions 15 Implicit Bias & Internalized Racism 16 Microaggressions 17 Strategies to Address Our Implicit Biases & Microaggressions 18 ADRESSING Model 19 Intent vs. Impact 20 Ladder of Inference 21 Rebounding from Mistakes 22 Part IV: Principles for Building Equitable Client Relationships 24 White Dominant Work Culture and Its Relevancy to Building Equitable Relationships 25 Why an Equitable Approach to Lawyering Matters 26 Key Principles for Equitable Relationships 28 Part V: Practices for Humble & Mindful Client Interviewing 31 APPENDIX A: Pro Bono Coordinator User’s Guide 39
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PURPOSE OF THE TRAINING GUIDE
The following resource is designed for programs working with pro bono attorneys and legal advocates in Washington State. Our goal is to provide a starting point for volunteers seeking to understand and practice key concepts related to race equity and anti-bias work. The resources offered below and companion video guides to follow cover the role of attorneys as stewards of racial justice, the intersection of racism and poverty, strategies for addressing implicit bias and internalized racism, and mechanisms for improving client interactions through a multicultural and anti-racist approach.
The content provided can be offered and shared as a stand-alone resource for pro bono attorneys, though Appendix A also outlines how pro bono coordinators and programs can utilize the curriculum and companion materials to host customized trainings. We acknowledge that programs differ with respect to resources, bandwidth, geography, practice area, and focus but offer these materials as a foundation that can be used and adapted freely to fit the unique context of local communities and specific programs.
CURRICULUM PARTNERS
This resource is offered through the Washington Race Equity & Justice Initiative (REJI), an effort staffed by JustLead Washington, in close partnership with the Washington State Pro Bono Council, the Washington State Bar Association, and Wayfind. REJI seeks to ensure that all who are a part of, and who are affected by, the law and justice systems have the awareness, tools, and ability to center a race equity approach toward their work within those systems. With this focus in mind, REJI provides training, connection, and resources to support law & justice organizations and advocates in their work towards racial equity. Special thanks to Dominique Shannon from Family Law CASA of King County and the many colleagues who reviewed this resource. Funding for the Pro Bono Equity Training Guide has been generously provided by the Washington State Office of Civil Legal Aid.
LICENSING AND ATTRIBUTION
JustLead’s original work, covering text, charts, graphics, and tools not otherwise attributed, is licensed under the Creative Commons Attribution-NonCommercial 4.0 International License. This license can be viewed at http://creativecommons.org/licenses/by-nc/4.0/. Users can freely share, adapt, and distribute JustLead’s material, provided that credit is given and use is non-commercial. For commercial use please contact [email protected]. Users must also follow the copyright requirements and permissions for the organizations and individuals whose content is included and attributed within the Guide.
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PART I:
WHY AN EQUITY MINDSET IS CRITICAL FOR VOLUNTEER ATTORNEYS
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As outlined in REJI’s Acknowledgments & Commitments, U.S. society, policies, structures, and systems operate to benefit certain groups and disadvantage others. Systems including the legal system have been infused over time by conscious and unconscious bias and continue to operate in ways that harm communities of color and other groups that have been targeted due to social identity factors such as gender and gender identity, immigration status or nationality, age, disability, religion, poverty and social class, sexual orientation, membership in an Indigenous community and ethnicity.
WHY TALK DIRECTLY ABOUT RACE? For the purposes of this Guide we focus explicitly but not exclusively on race and racism. While bias and oppression based on other social identities are equally harmful, and in fact the damaging effects of oppression are multiplied when race intersects with other factors like gender, class, and others, for reasons set forth below we are utilizing the frame of race and racism throughout this curriculum. However, many of the frameworks and concepts provided are to help navigate other forms of bias and oppression. Companion pieces will be released in the coming year that dig more deeply into other frequently requested topics.
Our Role as Stewards of the Justice System The effects of bias and racism are especially damaging when they are woven into the law, legal profession, and justice system, where they can weaken the ability of these systems to safeguard equity and justice under the rule of law. As attorneys and legal advocates, our obligation is to ensure that meaningful access to the law and justice systems is a reality for all members of society. We also understand the law, access, and technical expertise that we can lend towards a greater good. With this knowledge, we must lend our skills and access towards advancing justice, pro-actively supporting anti-racist policies, practices, and movements.
One framework used by REJI Partners is the Circle of Human Concern, coined by Professor john a. powell and the Haas Institute. Those operating within the Circle of Human Concern are those who are considered full members of society, who feel a sense of belonging. Those outside of the circle are intentionally targeted, excluded, and “othered.” Our work to pursue equity and justice demands that we expand the circle of human concern as widely as possible and that our limited resources are directed toward those who are experiencing the most harm and exclusion.
Special Duty of Attorneys Engaging with Low-Income Clients
The 2017 Justice Gap Report issued by the national Legal Services Corporation found that 71% of low-income households experienced at least one civil legal problem that year, including problems with health care, housing conditions, disability access, veterans’ benefits, and domestic violence. However, 86% of the time households did not receive any or adequate legal help. Similarly, here in Washington State, we know from the 2015 Civil
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Legal Needs Study Update that seven in ten low-income households in Washington face at least one significant civil legal problem each year, and more than three-quarters (76%) of those who have a legal problem do not get the help they need. Given the limited resources of civil legal aid and nonprofit civil rights organizations, pro bono attorneys play a critical role in ensuring equitable justice for all.
Pro bono service – the provision of free legal services to those unable to pay – is even codified DID YOU KNOW? as a professional and ethical obligation of all The preamble to Section 6 of attorneys. In the Washington Rules of the RPCs states that “all Professional Conduct (RPCs), Rule 6.1 states that lawyers should devote “every lawyer has a professional responsibility to professional time and assist in the provision of legal services to those resources and use civic unable to pay.”1 In addition to our ethical influence to ensure equal responsibility, RPC 1.1 also reminds us of our access to our system of duty of competence, which “requires the legal justice for all those who knowledge, skill, thoroughness and preparation because of economic or social barriers cannot afford or reasonably necessary for the representation.” secure adequate legal When providing pro bono services, attorneys counsel.” must endeavor to acquire the skills needed to best serve low-income clients.
Because by definition pro bono attorneys are working almost exclusively with clients and communities experiencing poverty, racism, and other forms of oppression, our pro bono partners must have the competence and confidence to carry out their work in ways that acknowledge, respect, and support the lived experiences of those they work with.
PAUSE & REFLECT: What motivated you to want to offer your services as a volunteer legal advocate?
Race, Poverty, & the Law
Many pro bono attorneys work with clients experiencing poverty, and often in training we are asked, “Why are we talking about race? Isn’t this really about class or poverty?” Yet race and poverty have always been linked and remain so today. The Washington State Civil Legal Needs Study Update conducted in 2015 confirms that who you are still matters:
1 Rule 6.1, Pro Bono Publico Service. Washington State Courts, Rules of Professional Conduct. Website. Access at https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC
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Native Americans, African Americans, people who identify as Hispanic or Latino, victims of sexual assault, young adults and families that include military members or veterans experience substantially greater numbers of problems and different types of problems than the low-income population as a whole.2 Often these problems adversely affect their ability to get or keep a job, secure stable housing and access necessary consumer credit. They also lead to greater difficulties with debt collection and their ability to secure government benefits to which they are entitled by law.
The Study also highlights that communities of color experience higher degrees of discrimination and unfair treatment and that those with the highest proportion of legal issues have the least confidence that the legal system can solve their problems. More than one in four low-income Black households and nearly one-third (31.5%) of low-income Hispanic households believe the legal system solves their problems “rarely” or “not at all.”
Historical Context
Understanding how class, race, and the law intersect requires knowing the historical and racialized context of our legal system. Our current system is rooted in the English Common Law System and was initially established to protect and enforce the rights and property of the white land-owning class at the inception of the United States and its colonization of Indigenous land. At that time, African Americans were enslaved and considered chattel property without rights of their own.
2 2015 Washington State Civil Legal Needs Study Update. Washington State Supreme Court. October 2015. Website. Accessed at https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC
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Unjust laws throughout US history have perpetuated racism and helped to racialize poverty. The premise of the law and justice system rests upon two frameworks designed to maintain the status quo: 1) Common Law doctrine known as “stare decisis,” which means that courts should use precedent (what has happened in the past) in decision making; and 2) the structure of the law as an adversarial “them versus us” system. In other words, those who benefit most by things staying as they are can Getty Images count on the law and justice system to help perpetuate a status quo that advantages them and creates inequities and harm for others. For example: