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ER 1.1 Competence

The Standard

A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

The Limitation

You don’t have to be wholly proficient in the area when you take a case, as long as you can become competent through study, preparation, or association with experienced co-counsel. 

FAQs

A family member really needs help in a family law matter but can’t afford a lawyer. Can I help out at no charge to my family member even though I have absolutely no family law experience?

It isn’t advisable to jump into an area of law where you have no experience to help a family member, or friend, particularly if you don’t plan to gain experience in the area.  The best help for your friend or family is a referral to an experienced attorney.  Plus, you probably don’t have malpractice coverage for this random practice area.  In a true emergency, a lawyer may provide limited assistance to a client, but still the best practice is to help the client/family member find an experienced practitioner.  Pro bono lawyers still must provide competent representation.

Do I have to tell the client I don’t have familiarity with the area of law, if I’m attempting to become competent?

The client should absolutely be told.  If he/she finds out later, it might cause complaining to the Bar, especially if the result is not as favorable as the client might have wanted.  The client must be informed if the lawyer is going to charge the client for the self-study or co-counsel affiliation.

Do I have to understand technology as part of my ethical obligation of competency?

Yes!  But you don’t have to understand it all yourself.  You can and should hire competent outside IT personnel if you don’t have competent IT staff.  “Competent” IT personnel requires confirming that the technology technician understands the lawyer’s ethical obligations to safeguard client information.

If I lose the case, does that mean I can be found to have been incompetent?

More than mere lack of success must be proven to find that you violated ER 1.1 or every losing lawyer in every case would be in violation of ER 1.1. 

Can I be competent in the area of law and still violate ER 1.1?

Failing to attend to necessary tasks, or file necessary pleadings, or do necessary investigation will still be a violation of ER 1.1.  In addition, if you take a case and fail to do any work, you will violate ER 1.1.

What about ineffective assistance of counsel?

Just like with malpractice cases, a criminal defense lawyer can fall below the Strickland standard of care but not necessarily violate ER 1.1.  Or the lawyer could violate ER 1.1, but not be found to have provided ineffective assistance of counsel.

Does “competence” require some level of factual investigation beyond just relying on client’s statement of the facts, before pursuing a course of action for a client?

Of course.  While the Rules do not require that a lawyer undertake a detailed cross-examination of a new client before agreeing to represent someone, competence does require ascertaining sufficient facts and evidence to reasonably support a good faith legal position. 

This page is managed by Patricia Seguin