Introduction

One of the four primary duties that California attorneys owe to all clients is a duty of competent representation. On admission to the bar, a lawyer’s oath includes a promise to “faithfully to discharge the duties of an attorney at law to the best of his knowledge and ability.”[1] The other three are: the duty of disclosure[2], the duty of confidentiality[3], and the duty of undivided loyalty[4].

Canons of Ethics

California Rules of Professional Conduct require an attorney to act competently. “(A) A member shall not . . . fail to perform legal services with competence. (B) . . .‘competence’ in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.”[5] The ABA has a similar rule. “A lawyer shall provide competent representation to a client.”[6] The duties owed by a lawyer to a client include acting “with reasonable competence and diligence.”[7]

Proposed Rule 1.1 Competence, provides:

“(a) A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

(b) For purposes of this rule, ‘competence’ in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service.

(c) If a lawyer does not have sufficient learning and skill when the legal services are undertaken, the lawyer nonetheless may provide competent representation by (i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes to be competent.

(d) In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in an emergency must be limited to that reasonably necessary in the circumstances.”

Common Law Duty

“The general rule with respect to the liability of an attorney for failure to properly perform his duties to his client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.”[8]

“[T]he special obligation of the professional is exemplified by his duty not merely to perform his work with ordinary care but to use the skill, prudence, and diligence commonly exercised by practitioners of his profession. If he further specializes within the profession, he must meet the standards of knowledge and skill of such specialists.”[9] “An attorney has an obligation to adequately supervise his employees.”[10]

Duty of Competence Cannot be Waived

The duty of competence is the only duty that a client cannot waived in advance. “A member shall not: (A) Contract with a client prospectively limiting the member’s liability to the client for the member’s professional malpractice.”[11]

^[1] Bus. & Prof. Code § 6067.

^[2] See, Duty of Disclosure.

^[3] See, Duty of Confidentiality.

^[4] See, Duty of Undivided Loyalty.

^[5] California Rules of Professional Conduct, Rule 3-110.

^[6] ABA Model Rule 1.1.

^[7] Rest.3d Law Governing Lawyers § 16(2).

^[8] Lucas v. Hamm (1961) 56 Cal.2d 583, 591 (citation omitted).

^[9] Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188.

^[10] Layton v. State Bar (1990) 50 Cal.3d 889, 900.

^[11] Rule 3-400.