Feb 27 2017

Ensuring Lawyer Competence in a Digital Age: A Primer on Massachusetts Rule of Professional Conduct 1.1

Are you a competent lawyer? Although competence is something most lawyers strive for and many would consider they already have, incompetence remains a frequent complaint to Massachusetts Bar Counsel. (See Massachusetts Bar Counsel Issues 2016 Report.)

In Fiscal Year 2016, allegations of incompetence were present in 14% of formal complaints opened by Bar Counsel and 29% of sanctions issued against lawyers by the Board of Bar Overseers and Supreme Judicial Court. Overall, incompetence ranked in the top five for both allegations raised in formal complaints opened by Bar Counsel and allegations resulting in discipline in 2016. What, then, are a lawyer's obligations under the Massachusetts Rules of Professional Conduct concerning competence? First, the rule:

RULE 1.1: COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

As Rule 1.1 makes clear, competence is not only a trait (a lawyer must have or acquire the requisite legal knowledge and skill) but also a practice (a lawyer must demonstrate thoroughness and reasonable preparation). Thus, competence under Rule 1.1 is never achieved once and for all but instead requires ongoing learning and application.

Legal Knowledge and Skill

The comments to Rule 1.1 explain that, in many instances, the only legal proficiency required for a lawyer to represent a client in a particular matter is that of a general practitioner. A lawyer does not necessarily need special training or prior experience to handle an unfamiliar legal problem. A lawyer can provide adequate representation in a new field through study. Competent representation can also be provided through association with a lawyer of established competence in the subject field. Relevant factors in determining whether a lawyer has the knowledge and skill to handle a particular matter include the complexity and specialized nature of the issue, 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 refer the matter to or consult or associate with a lawyer of "established competence" in the field in question.

In emergency situations, a lawyer may give advice or assistance in which s/he does not have the skill otherwise required where referral to or consultation or association with another lawyer would be impractical. In these situations, however, assistance should be limited to that reasonably necessary under the circumstances.

Thoroughness and Reasonable Preparation

Competent handling of a matter also 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." Thus, compliance with Rule 1.1 requires a lawyer both to understand and adhere to industry standards, and to explore and analyze the legal problem at hand in a reasonably thorough manner. As detailed below, to the extent technology may be available and relevant to the subject analysis, a lawyer should seek to understand its benefits and risks.

Likewise, adequate preparation is an element of competent representation. The attention and preparation required by a particular matter depends on the relative significance and complexity of the issues involved.

One common way for a lawyer to ensure the requisite attention is paid to a matter is by involving another lawyer. Before a lawyer retains or contracts with attorneys outside of the lawyer's own firm, however, the lawyer should generally obtain informed consent from the client and must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client. Whether a lawyer's decision to retain or contract with lawyers outside of the lawyer's own firm is reasonable depends on the circumstances. Relevant factors include the education, experience and representation of the outside lawyers, the nature of the services to be performed by the outside lawyers, and the legal protection, rules of professional conduct and ethical environments of the jurisdictions in which the services will be performed, especially as they concern confidential information.

Lawyers from multiple firms providing legal services to a client on the same matter should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. Other requirements, such as those imposed by a particular court, may also govern this allocation of responsibility.

Technology

In 2015, Comment 8 to Rule 1.1 was amended to state: "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education." Thus, all lawyers now have not only a practical reason but a professional obligation to stay current with emerging technologies relevant to the practice of law and their individual areas of practice.

Conclusion

Competence in both the practice of law generally and in a lawyer's chosen areas of expertise is a common goal shared by all attorneys. Rule 1.1 and its comments provide important insight into a lawyer's professional obligations concerning competence and explore various aspects of competence relevant to compliance. Ensuring your representation of clients is competent under Rule 1.1 will not only minimize the chances of a disciplinary investigation or sanction, but also assist in developing a successful and rewarding practice.

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