What does it mean to intentionally, recklessly, or repeatedly fail to perform legal services with competence?
In this blog I will be discussing California Rules of Professional Conduct, Rule 3-110.
Competence discussions can be very lengthy. There is a great deal of discipline case law on this rule, and a good state bar defense counsel can help you understand it and help you respond to the Bar when an investigation starts.
If you have read the rule, you know that the CA State Bar could charge you with 3-110 if you, as the member, intentionally, recklessly, or repeatedly fail to perform legal services with competence.
The rule goes on to say that “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.
Let's look at the rule verbatim first, then I will discuss.
Rule 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.
The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and non-attorney employees or agents. (See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452; Trousil v. State Bar (1985) 38 Cal.3d 337, 342 [211 Cal.Rptr. 525]; Palomo v. State Bar (1984) 36 Cal.3d 785 [205 Cal.Rptr. 834]; Crane v. State Bar (1981) 30 Cal.3d 117, 122; Black v. State Bar (1972) 7 Cal.3d 676, 692 [103 Cal.Rptr. 288; 499 P.2d 968]; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857-858 [100 Cal.Rptr. 713; 494 P.2d 1257]; Moore v. State Bar (1964) 62 Cal.2d 74, 81 [41 Cal.Rptr. 161; 396 P.2d 577].)
In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances. (Amended by order of Supreme Court, operative September 14, 1992.)
If you have looked over some of the other California Rules of Professional Conduct you might have noticed that some rules have a discussion portion at the end, while others do not.
Although the discussion portion can be helpful, in the sense that it provides us some good case law, however in this particular example I think it can do some attorneys a disservice.
In this rule, the last paragraph tells us that “In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral or consultation with another lawyer would be impractical”.
I can't tell you how many times I have heard the argument that in an emergency an attorney can: 1) perform less than expected; or 2) is allowed to give subpar advice because a client asked about something the attorney does not know and it's an emergency because the client needs to know it asap.
I'll save this for another discussion, but if I may say that it will be a very rare situation when the CA State Bar is alleging that you are incompetent, and then allows that incompetence to be “OK” due to an emergency.
My personal experience is that the State Bar would first allege you're incompetent, and then you have the burden to prove that somehow due to the emergency, that you fall within this exception. It is never a good spot to be in, trying to prove your innocence.
Ok let's get back to the main issue.
As stated above, if you intentionally fail to perform with competence then you could be charged with California Rules of Professional Conduct 3-110.
Out of the three (intentionally, recklessly, and repeatedly) common sense suggests that this is the worse of the three. Maybe not in the magnitude of discipline but at least from the investigator's perspective.
The State Bar Court made sure attorneys understand that no specific intent is required here to be found in violation. In fact, the court said that only a “general purpose” to commit the act is necessary. (King v. State Bar (1990) 52 C3d 307, 313-314, 276 CR 176, 180; Matter of Respondent G, supra, 2 Cal. State Bar Ct.Rptr. at 178-179)
Although I have seen investigations opened on attorneys simply missing court dates, in my experience the Bar is more likely to file charges against you if you have somehow prejudiced your client's case.
However, in the Matter of Wolff, a State Bar Court Review Department 2006 case, the court explained that failing to appear in court after specifically being instructed to do so, could be a violation. (Matter of Wolff (Rev.Dept. 2006) 5 Cal. State Bar Ct.Rptr. 1, 10-11) So here, although no obvious prejudice, if specifically instructed, you risk a 3-110 charge.
Even though during the investigation client prejudice is more likely to render filed charges, client harm or injury not required: ***Remember that unlike malpractice liability in civil actions, a 3-110 violation requires no showing of client injury or prejudice.
Recklessly and repeatedly:
Now that we have looked at how an attorney can be charged with intentionally failing to be competent, lets look at how you can be charged with recklessly failing to be competent.
The court has defined recklessness to include “gross negligence,” or even a “persistent disregard of an attorney's duty to his clients.” [See Davis v. State Bar (1983) 33 C3d 231, 238, 188 CR 441, 444—“grossly negligent failure to represent a client warrants discipline”;Spindell v. State Bar (1975) 13 C3d 253, 260, 118 CR 480, 485—“extreme neglect”; Gassman v. State Bar (1976) 18 C3d 125, 130, 132 CR 675, 678]
What if you fail to provide any value to your client's case? In In re Selter (2013), the attorney failed to prepare a demand letter and failed to provide a case evaluation to the client. Here the court found this was reckless. (In re Seltzer (Rev.Dept. 2013) 5 Cal. State Bar Ct.Rptr. 263, 268).
Regarding “repeatedly,” the most important thing for us to remember is the fact that no willfulness is required here. Simply failing to do something repeatedly is likely enough. (Matter of Respondent G (Rev.Dept. 1992) 2 Cal. State Bar Ct.Rptr. 175, 178-179; Blair v. State Bar (1989) 49 C3d 762, 777, 263 CR 641, 650; Matter of Hindin (Rev.Dept. 1997) 3 Cal. State Bar Ct.Rptr. 657, 686.)
Are there any mistakes that will not amount to a violation?
What if you blow a statute? Sounds like an easy violation based on what has been discussed already right? Not necessarily. Isolated events do not necessarily amount to ethical violations.
A great example of this is if you fail to file answers to interrogatories. This was not found to be discipline worthy, however you should note that all other discovery was handled correctly and timely, AND the failure seemed to be isolated in one single event AND (yes there are lots of ands here), it was found to be mere negligence. (Call v. State Bar, supra, 45 C2d at 111, 287 P2d at 765—isolated mistake in judgment not ground for discipline; Matter of Fonte (Rev.Dept. 1994) 2 Cal. State Bar Ct.Rptr. 752, 757—calendaring error resulting in failure to file answers to interrogatories not violation of rule where other discovery handled on timely basis) (Matter of Riley (Rev.Dept. 1994) 3 Cal. State Bar Ct.Rptr. 91, 113; Cal. State Bar Form.Opn. 2015-193—“mere failure to act competently does not trigger discipline under rule 3-110”)
What are some practical tips to avoid a 3-110 charge?
Associate in another counsel with prior experience in these kinds of matters. When you are first starting out, or even if you have been practicing a while but you are a sole practitioner, there is nothing wrong with bringing in other experienced counsel. Obviously, you are going to want to get written authorization from the client, but the value an experienced associate counsel can give is well worth the fee split.
Even though we as attorneys are always considered to be competent to handle all matters, no matter how long we have been practicing, practical-wise it doesn't make much sense to not associate with more experienced counsel.
So, what do you do when you a client wants to hire you, and you have a decent understanding of the issues, but you know that you will have to do more research on the subject in order to give the client some good advice? Well hopefully common sense tells you that you simply should be honest with the client.
Nothing should stop you simply telling the client that in order for you to properly be prepared for this case, you need to do more research. If the client doesn't feel comfortable then they will hire someone else, but they have come to meet you for a reason. Maybe they have been referred to you, maybe your past experience is exactly what they are looking for or maybe you just seem like a caring individual and the client wants that above all else. Either way, honesty in this situations can go a long way. AND most importantly to you: you can charge the client hourly in order to complete that research. Nothing should stop you from adding a section in your scope of services that states that you are conducting research.
Remember, representation may be accepted when you can represent the client properly after research and preparation are completed.
As stated this is a huge subject and I had to jump around a little bit here to try to get some big points in here, but hopefully it helped you.