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More important than confidence: competence

It has made all the headlines: "Local Celebrity Leaves Charity Gala -- Crashes Into Tree." The well-known socialite was subsequently arrested for driving under the influence of alcohol and drugs. You have been following the case in the news along with the rest of the San Diego community. Much to your surprise and shortly before the first court hearing, you receive a phone call. The female celebrity who has thus far been represented by a local high-profile attorney has decided to seek alternative counsel, and has decided that she would like to retain you. Although you are flattered to have received the call, there is one problem. Your practice is mainly civil litigation. Although you have dabbled from time to time in representing friends and acquaintances charged with low-level crimes, you have never handled a case where someone was charged with driving under the influence. But then you ask yourself, how hard can it be? After all, you have friends who practice this type of law; maybe they can point you in the right direction with your research and help you with your preparation. Should you take the case?

California Rule of Professional Conduct 3-110, Failing to Act Competently

Rule 3-110, Failing to Act Competently, states that:

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, (2) learning and skill, and 3) mental, emotional and physical ability reasonably necessary for the performance of such service.

(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

The rule also states that only in an emergency may a lawyer provide assistance or advice regarding a matter in which the lawyer does not have the skill ordinarily required to handle the issue. This type of emergency assistance should be restricted to only that which is reasonably necessary under the particular circumstances.

According to Paul O'Brien, Esq., a Senior Trial Counsel in the Office of the Chief Trial Counsel, CRPC 3-110 violations constitute the most frequently charged violations in State Bar Court. O'Brien also points out that violations of this section may raise issues under California Business and Professions Code Section BP 6068(m), which lists one of the Duties as an Attorney as the duty "to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services."

The hypothetical above should raise a large red danger flag for the civil attorney unfamiliar with criminal law. In order to competently represent this client, the attorney has a lot to learn.

Getting up to speed

The above hypothetical is not unheard of. Attorneys often substitute into cases, sometimes shortly before a motion date, sometimes at the last minute before a preliminary hearing or jury trial. Sometimes this substitution is due to an indecisive or unsatisfied client; sometimes it is prompted by a client running out of money. In criminal court, appointed attorneys are occasionally relieved pursuant to a Marsden motion where a client moves to fire his or her own attorney, often because they do not agree with the attorney's advice.

In most cases a substitution of attorneys will justify a continuance, but in some cases, such as when a defendant is in custody, a continuance will be denied. Most attorneys know the general rule that if they are unfamiliar with a particular subject area they should not take on cases in that area without significant training and preparation. But there is a tendency, however, to underestimate the difficulty of taking on a new case.

The deceivingly difficult case

Novice attorneys in particular are well advised to tread cautiously when deciding to substitute into a new case outside of their practice area. Many underestimate the complexity of an unfamiliar area of law and believe that their colleagues can educate them in time for trial. But that may not be the case. In the above example of a driving under the influence case, the biochemistry involved in the interaction of alcohol and drugs can be very complicated. While juries watching trials involving crimes of violence will end up attempting to resolve credibility issues surrounding conflicting testimony, juries on drug and alcohol cases will be struggling through a battle of the experts about calibration records, reverse extrapolations, and the dynamics of breath and blood alcohol machines. Even attorneys who practice in this area find many of these cases challenging.

Mental, emotional and physical competence

Attorneys should also not lose sight of the fact that the competence rule includes not only mental but also emotional and physical competence. Add to the above hypothetical the element of representing a celebrity while the general public watches and critiques your performance. This would not be a stress-free case for a DUI professional, much less a civil litigator. Even if you could learn all of the applicable law in time, there could likely still be an issue with your comfort level, physical and emotional competence of your representation.

All of this does not mean that you should never accept a case outside of your usual practice area. But when you seek to expand your horizons, you should focus on the applicable ethical and legal rules of proficiency that govern your conduct, in order to practice with confidence, as well as competence.

Patrick, Esq., is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice.

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