Duty of competence
A lawyer has a duty of competence which requires him to provide competent
representation to his clients by using the appropriate skills, knowledge, and
thoroughness. A lawyer who is not competent in a particular area may nevertheless take
a case in that area if he can either 1) become competent before trial through research
and familiarizing himself with the area of law or 2) associating with a lawyer who is
competent in the area. Additionally, in an emergency, a lawyer may act in an area in
which he is not competent, as long as he stops the representation when the emergency
is over. In California, a lawyer breaches his duty of competence only if he intentionally,
recklessly, or repeatedly acts without competence.
Here, Lou is an estate planning attorney who has never represented defendants in a
criminal case before. Lou has not breached his duty of competence merely by taking the
case because he can potentially become competent in the area or he can associate with
an attorney who is competent in the area. The facts, however, do not indicate the Lou
has done either of these things. Lou clearly has not familiarized himself with the area of
law because the court was angered during the arraignment with Lou's unfamiliarity with
criminal procedure. Additionally, there is nothing in the facts that indicates that Lou has
associated with a competent attorney. Therefore, under the ABA rules, it is likely that
Lou has breached his duty of competence.
Under the CA rules, a lawyer breaches his duty of competence only if he acts
incompetently intentionally, recklessly, or repeatedly. In this instance, Lou has not
repeatedly acted without competence because there is no indication that it was Lou's
normal practice to accept representation for clients in areas in which he is not competent.
There is a strong argument that Lou has intentionally or recklessly acted without
competence. If Lou has not made any effort to familiarize himself with the area of law,
then he has intentionally acted incompetently. However, if Lou truly made an effort to
become competent but nevertheless was unable to become competent, it is unlikely that
he acted intentionally or recklessly.