Introducing “Malpractice Mondays”
Over the next few months, the “Malpractice Monday” column will take a look at basic attorney competence, including minimum requirements and helpful practice tips for achieving and maintaining competence levels. In addition, we’ll take a look at some common malpractice issues involving lawyers and the legal profession.
Today, we start our tour of attorney competence and legal malpractice with a look the minimum threshold for attorney competence: “Learning and Skill.”
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
In California, the standards for an attorney’s professional conduct are established by the California Rules of Professional Conduct. Attorneys whose conduct violates these rules are subject to discipline by the State Bar–and, potentially, to disbarment if they fail to cure or cease the improper conduct.
The California Rules of Professional Conduct were established, and approved by the California Supreme Court, to protect the public (and also to promote confidence in the state’s attorneys and the legal profession generally). All attorneys who practice law in California are subject to and must obey the Rules of Professional Conduct.
ATTORNEYS MUST POSSESS AND EXHIBIT “LEARNING AND SKILL”
A lawyer must possess and utilize the appropriate level of learning and skill to handle a relevant matter. (California Rules of Professional Conduct 3–110(B))
This means that a lawyer must possess the legal skills and knowledge to handle any matter the attorney agrees to undertake on behalf of a client. The attorney doesn’t have to win every case. (In fact, since every lawsuit has a winner and a losing side, it would be impossible to require victory.)
However, an attorney must possess at least three basic skills:
1. The ability to determine the kinds of legal problems, claims, or issues involved in a client’s situation.
2. The capacity to analyze the factual and legal elements of the client’s problem and/or situation.
3. The skills to represent the client competently with regard to matters the attorney agrees to undertake.
If an attorney cannot competently handle all three of the preceding requirements, the attorney should not accept the client’s case — OR should take appropriate (and legally permitted) steps to obtain the necessary skills.
Competency requires all attorneys to know whether the attorney can handle a particular legal problem and if not, to protect the client’s interests by taking appropriate action.
As we will see in the coming weeks, sometimes the appropriate action is taking classes or associating with other counsel to obtain the knowledge and skills required to offer competent representation. Sometimes “appropriate action” means refusing the client or the case.
No attorney is competent to represent all clients or to handle all kinds of legal claims. Some attorneys handle a range of issues, while other attorneys specialize. Some attorneys represent many clients simultaneously; other attorneys accept only a few. The methods an attorney may use to ensure are a matter of personal choice and ability–professional capacity is not “one-size-fits-all.” However, each attorney does have the personal, and professional, obligation to ensure that his or her practice is run with at least the level of competence, learning, and skill required by the California Bar.
If you’re in Southern California, or Los Angeles County, and have questions about this or other legal malpractice issues, feel free to contact us!
© Ross Law, 2014