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Rules of Professional Conduct

Some notes on competency, RPC 3-110

Posted by Anthony Radogna | Jun 22, 2017 | 0 Comments

Rule 3-110 states a person must exercise their duties with related skills and knowledge.  More specifically, an attorney must perform their duties competently in their respective fields of expertise.  There is an exception to the rule where in the event of an emergency, an attorney may step in to provide assistance; however, the performed services must be limited to what is reasonably necessary under the circumstances.    

 The rule is included in its entirety for your review:

 Rule of Professional Conduct 3-110: Failing to Act Competently

(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.

An attorney lacking the required competence for e-discovery issues has three options:

(1) Acquire sufficient learning and skill before performance is required;

(2) Associate with or consult technical consultants or competent counsel; or

(3) Decline the client representation.

What you need to remember:

An attorney is presumed to be intelligent and competent by the very nature of his or her education and training.  However, the presumption does not demonstrate the necessary learning and skills within every area of law.  Moreover, the presumption does not ensure an attorney will perform their duties in a competent manner and/or keep adequate records.

 In Trousil v. State Bar, the State Bar found that the petitioner failed to communicate with his clients, and failed to prepare a cross-complaint during his representation. This case brings me to another point: it is important to understand that missing the filing of a brief, failing to file a certain document in time, or even consistently not showing up to court on time or not at all, may make the State Bar look at that inaction as your incompetence.

 This rule, when alleged by the State Bar, also includes your management of the case, from assessment and preparation, to disposition and billing. 

 Can you be disciplined for not properly supervising another licensed attorney? In certain situations, the answer is yes. Under Rule of Professional Conduct, rule 3-110(C), the principal attorney is also responsible for the supervision of other attorneys.  In Moore v. State Bar, the principal attorney received discipline after he failed to supervise and monitor the actions of a consulting attorney hired to address a specialized area of law.

 For further information please refer to the following:

Moore v. State Bar (1964) 62 Cal. 2D 74

Waysman v. State Bar (1986) 41 Cal.3d 452 , 224 Cal.Rptr. 101; 714 P.2d 1239

Trousil v. State Bar (1985) 38 Cal.3d 337 , 211 Cal.Rptr. 525; 695 P.2d 1066

The State Bar of California Standing Committee on Professional Responsibility and Conduct formal opinion no. 2015-193

NuVasive, Inc. v. Madsen Medical, Inc., 2015 WL 4479147 (S.D. Cal. July 22, 2015)

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)

Online References:

https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-3-110

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=3.&title=&part=&chapter=4.&article=4.5.

https://www.bna.com/fate-california-rule-n57982086261/

About the Author

Anthony Radogna

Anthony Radogna worked for over 5 years as an Investigator for the State Bar of California's Office of Chief Trial Counsel ("OCTC"), investigating a wide-range of ethical complaints brought against attorneys. In addition, he served on specialized task force teams and has experience investigating the unauthorized practice of law (Business and Professions code section 6126.3), abandoned law practices, disbarred and resigned attorneys, and other activities such as drug abuse and physical or mental illness (Business and Professions code section 6180 and 6190). He is admitted to practice law in California and the United States Central District Court. Anthony now provides advice, consultations, and representation to California attorneys involved in State Bar proceedings, from resolving complaints, to defense in State Bar trials and appeals. Anthony graduated in 2001 with a Bachelor of Science in Business from Cal Poly Pomona. He received his Juris Doctorate from La Verne Law School and became a licensed attorney in 2008. He also holds a LL.M in Criminal Law and Practice from Southwestern Law School. In addition, he currently is an Associate Professor at Irvine University Law School, where he proudly teaches Professional Responsibility and Criminal Procedure classes to law students. He also serves as a committee member on two separate school Committees, Academic and Admissions. Anthony is a member of the Orange County Bar Association. He is also currently serving as a liaison to the California State Bar for the Lawyers Assistance Program (LAP). LAP helps lawyers and State Bar applicants who are grappling with stress, anxiety, depression, substance use or concerns about their career. Anthony is a "NITA Advocate" (National Institute of Trial Advocacy). This advocate designation is reserved for the individuals who have completed extensive training and learned a wide range of advocacy skills through the NITA program.

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