Attorney Diligence: Skills, Time, and Resources
We’ve spent the past few Mondays discussing attorney competence, which is the first prong of proper legal practice.
Today, we’ll take a look at another important factor: attorney diligence.
ATTORNEYS MUST TREAT CLIENT MATTERS WITH PROPER DILIGENCE
Attorneys must only represent clients when the attorney can dedicate adequate time and resources to representation of the client’s issues. The rules which govern attorney conduct state that attorneys owe the client, and also the court, a duty of proper diligence,
THE THREE COMPONENTS OF DILIGENCE: SKILL, TIME, AND RESOURCES.
As we’ve discussed the last few weeks,, an attorney must represent clients only when the attorney has the necessary skills and knowledge to assist the client with the relevant matters.
In addition, the attorney must represent clients only when the attorney has adequate time to dedicate to the representation. Attorneys must attempt to resolve a client’s issues with “reasonable speed” and without prejudicial delays, to the best of the attorney’s professional capacity. The law does not hold attorneys responsible for delays or lapses of time beyond the attorney’s reasonable and professional control. However, an attorney should take on new clients only when the attorney’s schedule permits devoting proper time to the client’s matters and issues.
Finally, diligent representation requires an attorney to possess appropriate resources to handle a client’s case or issue. Some specialized practice areas, like bankruptcy law, may require access to special software to help with calculations or to file forms with the court. Personal injury lawyers who work on contingency cases may need the resources to handle the case through trial without being paid in advance.
Attorneys need not possess every resource available to practitioners in the relevant field, but they must have sufficient resources, and access, to handle the client’s issues with competence and reasonable speed.
DILIGENCE MAY INCLUDE A DUTY TO INVESTIGATE
As a general rule, an attorney may depend upon facts and statements made by his or her client, and has no obligation to investigate the veracity of those statements by independent research. However, when the attorney is (or becomes) aware of facts or circumstances which require investigation, the attorney may have an obligation to conduct further research into the issue.
In some cases, however, attorneys do have an obligation to investigate certain facts. Civil actions are a good example. Attorneys may only file civil actions, and motions relating to civil actions, when the filings have evidentiary support. In fact, the California Code of Civil Procedure states that filing a motion constitutes the attorney’s representation that, “to the best of [the attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the contents of the motion are both true and supported by sufficient facts and law. (California Code of Civil Procedure, Section 128.7)
Courts can sanction attorneys who file motions without performing due diligence or reasonable investigations. Reliance on client information, without more, is not sufficient and not a proper defense, unless the facts and circumstances of the specific case make it reasonable for the attorney to do so. Normally, this requires some evidence, documentation, or facts beyond the client’s spoken word.
DILIGENT REPRESENTATION IS AN OBLIGATION, NOT A FAVOR
Attorneys must not represent clients unless the attorney possesses the knowledge, time, and resources to handle the client’s matter professionally and with competence.
This doesn’t mean the attorney must always win, or that the client will always be happy with the outcome of a case. Even competent lawyers lose cases. A loss, without more, doesn’t mean the attorney failed to represent the client with proper diligence.
Attorneys should document their time, research, and activities with sufficient care to demonstrate proper diligence on the client’s behalf. Careful scheduling and calendar awareness will help ensure that a lawyer takes on new matters only when he or she has the time and resources to see the matter through.
© 2014 Ross Law