Closing a Skill Gap: Acquiring Legal Competence
IS A LAWYER ALLOWED ACQUIRE THE NECESSARY COMPETENCE TO REPRESENT A CLIENT DURING THE REPRESENTATION?
While this may seem surprising, the answer is yes–sometimes.
As a general rule, a lawyer cannot accept a case where the lawyer is too busy or too inexperienced to provide competent representation.
However, a lawyer who has the time and interest to take on a matter, but lacks familiarity with the relevant law, or lacks the experience required to handle the matter competently, can accept the matter (with proper disclosures to the client when necessary) in certain circumstances.
Specifically, the lawyer must:
- Acquire the required skill and knowledge before it is necessary to use them on the client’s behalf
- But only when it is possible to do so quickly enough, and thoroughly enough, to ensure that the lawyer is fully competent by the time it is necessary to act on the client’s behalf
- But only when the lawyer has the resources, ability, and time to become competent in a timely manner
- Consult with another lawyer who is competent in the relevant area
- But only where consultation is enough to make the relevant attorney competent
- If mere consultation is not enough, the lawyer may choose to associate or work jointly with the competent lawyer (option 3, below)
- Represent the client or handle the matter jointly with a lawyer who is competent in the relevant area
- In this case, the competent, experienced lawyer will need to guide or supervise the other lawyer in areas where competence is lacking
In the alternative, a lawyer can refer the client or matter to a lawyer that the referring lawyer believes is competent to handle the case.
DOES A LAWYER HAVE TO EXPLAIN THAT (S)HE REFUSED TO TAKE A CASE FOR COMPETENCE REASONS?
A lawyer can inform a prospective client (or an existing client, if the lawyer refuses to represent the client with regard to a new or specific matter) that the lawyer is not going to take the case. While the communications have to convey the lawyer’s refusal, and any other legally required information, properly, the lawyer is not required to tell the client that the reason for the refusal is that the lawyer is not, or does not feel, competent to handle the representation.
Lawyers sometimes do explain when this is the case, as it sometimes is easier for clients to understand. However, it is not required.
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