In this segment of the Green Law Office and paperless practice we examine the duty of competence. Many lawyers resist the transition from pen and paper to computerized practice.
Nonetheless, in today's world we must recognize that clients expect their lawyers to be up-to-date with modern legal practice and able to keep pace with their opposing counsel as well as the court. If a lawyer finds himself or herself handling a matter where all of the discovery and motion practice is done electronically, he or she may face an uphill battle in attempting to handle the case.
The Green Law Office and the duty of competence
If you are practicing law in the new millennium, you should have a working knowledge of the legal and ethical rules that apply or could potentially apply to the facts and circumstances of your cases.
Your duty of competence includes being able to perform legal representation with competence, bringing in other lawyers who can, or by acquiring the necessary learning and skill by the time you begin performing legal services.
In order to comply with the duty of competence, lawyers are well advised to become familiar with contemporary modes of communication, particularly because in some jurisdictions, many aspects of a case are frequently done electronically, such as discovery and filing motions and other court documents.
Arguably, a lawyer who is still using a pad of paper and a pencil may not be equipped to handle a case where the discovery comprises an enormous amount of electronic documents, the other parties in the case are all communicating electronically, or the subject of the representation involves anything related to the Internet, websites or technology.
California Rule of Professional Conduct 3-110, Failing to Act Competently states in paragraph (A) that “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence."
“Competence” is described in subsection (B) as “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Subsection (C) states that if the lawyer does not possess the learning and skill necessary when the representation was undertaken, he or she may still render competent representation by associating with or consulting another lawyer who does possess the requisite competence, or by acquiring the necessary learning and skill themselves before performing the legal services.
ABA Model Rule 1.1, Competence
While not binding in California, we may look to the ABA Model rules of Professional Conduct for guidance. Rule 1.1 mandates competent representation, which is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
In determining whether or not a lawyer possesses sufficient legal knowledge and skill in a particular matter, Comment  notes that relevant factors include “the relative complexity and specialized nature of the matter, 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 associate or consult with, a lawyer of established competence in the field in question.”
Regarding learning the ropes electronically, Comment  recognizes the ability to get up to speed in stating that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience.” The Comment goes on to recognize that important legal skills such as case analysis, legal drafting and other fundamental skills such as identifying the issues in a particular case may be more important than specific legal knowledge. Regarding acquiring competence, the Comment notes that “[a] lawyer can provide adequate representation in a wholly novel field through necessary study,” and also notes that competent representation can also be provided through “the association of a lawyer of established competence in the field in question.”
Comment  notes that a lawyer may represent a client where he or she can attain the requisite level of competence through “reasonable preparation.” The Comment notes that this provision also applies to appointed counsel for a client who is unrepresented (referring the reader to Rule 6.2.) Similarly, Rule 6.2 Comment  notes that even appointed counsel are allowed to decline representation if the lawyer feels he or she is unable to handle the matter competently per Rule 1.1
A lawyer's duty of competence is an integral part of handling cases in the new millennium. With more lawyers and law firms transitioning to a Green Law Office, a working knowledge of the law and ethical rules governing a lawyer’s duty of competence will facilitate effective and ethical interaction in the virtual world of the Green Law Office.