In addition, unlike the Model Rule, the California language contains a very specific requirement regarding the state of mind necessary to breach the rule of jurisdiction; the failure to provide competent services must be “intentional, reckless, grossly negligent or repeated”. The intent of the rule is to remove “simple” negligence from the realm of possible discipline, consistent with California`s longstanding approach since 1928 that the rules of professional conduct govern the disciplinary process primarily, if not exclusively, and do not provide prophylactic advice to attorneys. 2014 Formal Ethics Opinion 5. Rules of Opinion A lawyer must advise a civil law client on the legal implications of the client`s social media posts, to the extent necessary to represent the client competently. The lawyer may advise the client to remove social media posts if the removal complies with the rules and laws on the preservation and looting of evidence.  A lawyer may accept representation if the required level of competence can be achieved through appropriate preparation. This also applies to a lawyer who is appointed as a lawyer for an unrepresented person. For the purposes of this Rule, “competence” in a legal service means the application of (i) the learning and skills and (ii) the mental, emotional and physical abilities reasonably necessary for the provision of that service. Finally, our rule of jurisdiction contains this provision, which is quite strange because it suggests that a practice incompetent is acceptable in an emergency: CPP 216. The notice states that a lawyer may use the services of an independent contractor to search for a title, provided that the non-lawyer is properly supervised by the lawyer. Formal Declaration of Ethics 2008 14. The view is that it is not a violation of ethics if a lawyer fails to include in a legal brief, contract or pleading, brief, contract or oral argument written by another lawyer in his or her own pleading, contract or pleading or to obtain consent. .
What is “simple” negligence versus gross negligence or recklessness? An illustrious example. Most lawyers have schedule systems in place to track important events such as the expiration of the statute of limitations. Not entering information correctly into this system is probably a simple negligence, a simple mistake, but that would help the damages in a lawsuit for a legal error if the customer is harmed. Not having a scheduling system is almost certainly gross negligence or perhaps even reckless behavior that would support discipline for violating the rule of jurisdiction. (See In the Matter of Sullivan (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr 608, 1997 WL 91032.) Official Ethics Report 2014 4. The notice states that an attorney may send a subpoena for medical records to a HIPAA-covered company without giving the assurances the company needs to comply with the subpoena under 45 C.F.R. § 164.512(e)(ii). As the rules recognize, competence is the first and foremost principle for the ethics advocate. California`s detailed rules of jurisdiction give attorneys more advice and assistance in adhering to the cardinal rule that requires jurisdiction.
Model rule 1.1 is followed in most States with some variations. It reads: “A lawyer must represent a client competently. Competent representation requires the legal knowledge, skills, rigour and preparation reasonably required for representation. (Emphasis added.) Model Rule 1.3 provides another element for the wording of the OBLIGATION of competence by the ABA by stating that “a lawyer shall act with reasonable care and speed to represent a client”. Rule 1.1 is essentially similar to DR 6-101(A). DR 6-101(A)(1) provided that a lawyer “may represent in cases only when … The lawyer can act competently and demonstrate the specific legal knowledge, skills, efficiency and rigor in preparation used in acceptable practice by lawyers conducting similar cases. DR 6-101(A)(2) also allowed for representation in cases where a lawyer is “associated with another lawyer competent in those cases”.  A lawyer does not necessarily need to have special training or previous experience to deal with legal issues of the kind they are not familiar with.
A newly admitted lawyer can be as competent as a practitioner with many years of experience. Some important legal skills, such as analyzing precedents, evaluating evidence, and drafting legal texts, are required for all legal matters. Perhaps the most basic legal competence is to determine the type of legal problems that a situation may entail, a competence that necessarily goes beyond a particular level of expertise. A lawyer can provide appropriate representation in a completely new field through the necessary studies. Competent representation may also be provided by the association of a lawyer with proven competence in the field concerned. No lawyer has been disciplined for violating this section, but it does provide an important roadmap on how an unskilled lawyer can become competent and avoid breaking the rule.  To determine whether a lawyer applies the necessary knowledge and skills in a particular case, the relative complexity and specialized nature of the case, the general experience of the lawyer, the lawyer`s training and experience in the field in question, the preparation and study that the lawyer is able to: deliver the case, and whether it is possible to refer the case or to associate or consult a lawyer with proven competence in the field in question […].