Outline of Substantive Law

Outline of Substantive Law

DUTY OF COMPETENCE

I. BEST KNOWELDGE & ABILITY

Every lawyer admitted to practice in California takes an oath that includes a promise “faithfully to discharge the duties of an attorney at law to the best of his [or her] knowledge and ability.” [Bus. & Prof.Code § 6067]

1. Business & Professions Code § 6068 sets forth various duties of an attorney. Although the statute does not specifically mention competent representation, it includes several duties inherent in that concept:

· “(t)o counsel or maintain those actions, proceedings, or defenses only as appear to (the attorney to be) legal or just . . .”;

· “(t)o employ ... those means only as are consistent with truth ... ”;

· “(t)o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client”;

· “(t)o advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged”;

· “(t)o respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.”

[Bus. & Prof.C. § 6068(c),(d),(e)(1),(f) & (m) (parentheses added)]

2. Duties of Attorney Include Adequate Client Communication: The duty to communicate with the client re “significant developments” in the case is mandated by both Bus. & Prof.Code. § 6068(m) and CRPC 3–500. See also Calvert v. State Bar (1991) 54 Cal.3d 765, 782 (adequate communication with clients “is an integral part of competent professional performance as an attorney.”)

Rule 3-500: “A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”

B. RULE 3-110

1. Competence: A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” [CRPC 3–110(A)]

a. Compare—ABA Model Rules: “A lawyer shall provide competent representation to a client ... ” [ABA Model Rule 1.1]

b. Note: Professional Law Corporations are subject to CRC.

c. Duty is to act competently is nonwaivable. Thus, a client may not waive a lawyer's duty to act competently as a result of a conflict of interest or for any other reason. [See CRPC 3–400—prohibiting contract with client to prospectively limit attorney malpractice liability]

2. Definition: Competence is defined as legal learning, diligence and “the mental, emotional and physical” ability to perform legal services. [CRPC 3–110(B)]

C. LACKING MENTAL, EMOTIONAL OR PHYSICAL ABILITY

1. Mandatory Withdrawal: A lawyer must not represent (or continue to represent) a client if the lawyer's “physical or mental condition renders it unreasonably difficult to carry out the employment effectively.” Withdrawal is mandatory under such circumstances. [CRPC 3–700(B)(3); ABA Model Rule 1.16(a)(2)]

2. Serious Personal Problems: Marital difficulties or financial pressures, can interfere with the attorney's performance of his or her professional responsibilities and result in a violation of CRPC 3–110. [See Smith v. State Bar (1985) 38 Cal.3d 525, 540—“even in the face of serious personal problems, an attorney has a professional responsibility to fulfill his duties to his clients or to make appropriate arrangements to protect his clients‘ interests”; Gary v. State Bar (1988) 44 C3d 820, 824 (alcohol problem); Snyder v. State Bar (1976) 18 Cal.3d 286, 293 (mental and emotional strain)]

3. Consequences of Rule 3–110 violation

a. State Bar Discipline: Violation of the attorney's oath or duties is cause for discipline, disbarment or suspension. [Bus. & Prof.Code § 6103; CRPC 3–110(A); Schullman v. State Bar (1976) 16 Cal.3d 631, 635].

b. Involuntary Inactive Enrollment: An attorney who is incapacitated by excessive use of alcohol or drugs or as a result of a physical or mental illness may be placed on involuntary inactive enrollment by the State Bar. [See Bus. & Prof.C. § 6007]

c. Malpractice Liability: Failing to perform competently may result in malpractice and other civil liability—including professional negligence, breach of contract, breach of fiduciary duty and/or intentional torts.

Note: CRPC violation not enough. A civil action for professional negligence requires (in addition to proof of duty and breach) a showing of damages proximately caused by the attorney's breach of duty. [Ishmael v. Millington (1966) 241 Cal.App2d 520, 523]

RELEVANT ETHICAL RULES OF CONDUCT (Attached)

1. Rules of Professional Conduct, Rule 3-110 (Failing to Act Competently)

2. Rules of Professional Conduct, Rule 3-400 (Limiting Liability to Client)

3. Rules of Professional Conduct, Rule 3-500 (Communication)

4. Rules of Professional Conduct 3-700 (Termination of Employment)

5. ABA Model Rule 1.1 (Competence)

6. ABA Model Rule 1.16 (Declining or Terminating Representation)

Self-Care & The Lawyer

Arezou Kohan, Esq., CPCC