Excuses, Excuses…Breaching the Duty of Competent Representation
Lawyers have a duty to represent clients with minimum levels of competence. In this context, “competence” refers not only to the attorney’s knowledge and skill, but also to the manner in which the lawyer undertakes the representation. Lawyers cannot legally take on a case or issue and then fail to perform their duties in a professional manner.
Sometimes, a lawyer’s failure to handle a client’s matter or issue results from a legitimate, recognized, excuse. The law recognizes certain delays as justified, and not all delays or failures by the attorney constitute malpractice or lack of competent representation. However, not all excuses will justify a lawyer’s failure to represent the client and/or handle the client’s case or issue properly.
Today, we take a look at a few “excuses” which do not usually justify a failure to represent the client properly:
1. Lack of Legal Merit in the Client’s Claim. A lawyer who suspects that a client’s claim or issue lacks legal merit cannot use this suspicion (or even the reality, should the claim prove spurious) to justify ceasing work on the case or failure to handle the issues on the client’s behalf. If a lawyer believes the client’s claim lacks merit, the lawyer can (and probably should) withdraw from representation and terminate the attorney-client relationship, at least with regard to the claim at issue. The lawyer may, but need not, perform additional legal research or otherwise investigate the merits of the client’s claim, and may bill the client for work performed on the client’s behalf (including this research) if permitted under the retainer agreement.
2. The Client’s Failure to Pay. A lawyer may not cease working on a client’s case simply because the client refuses to pay. However, a lawyer may terminate the attorney-client relationship and/or withdraw from representation if the client fails or refuses to pay for the attorney’s services–and unless the lawyer is legally required to complete or continue providing services to the client, the lawyer’s withdrawal terminates all requirements for the lawyer to continue to perform any work on the client’s behalf. Clients should not assume that they can refuse to pay, or delay payment, to a lawyer without consequence. Failure to pay billings and retainers when due does justify the lawyer’s withdrawal in many (if not all) cases.
3. Excessive Attorney Client List or Workload. Scheduling problems do not generally excuse a lawyer’s failure to represent the client and perform work on the client’s matter or issue in a timely manner. If a lawyer’s delay results in (or constitutes) malpractice, the fact that the lawyer has many other clients or a heavy workload will not excuse the delay. Lawyers have a duty to schedule matters, and accept representation of client issues, only when the lawyer’s schedule permits proper representation of all existing clients and issues. If circumstances change, the lawyer should communicate with the clients and either reschedule (where appropriate), associate co-counsel (if permitted), or withdraw from representation.
4. Personal Issues. A lawyer’s personal problems do not justify or excuse the lawyer’s failure to competently represent clients. If a lawyer’s personal life or personal issues rise to a level which interferes with his or her practice, the lawyer has a duty to adjust his or her schedule (where appropriate), associate co-counsel (if permitted), or withdraw from representing some or all clients until the lawyer’s personal life and schedule return to a level where competent representation of clients can occur.
Disclaimer: Legal claims against lawyers (and non-lawyer defendants) are a complicated topic. Articles like this touch only on basic issues. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims. THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary.
Never use an article like this one (or any other online or printed source) to evaluate your legal claims. Always speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel.