Competence and diligence - Exercising diligence and care

Learning Outcomes

After reading this article, you will be able to explain the requirements for competence and diligence under the Model Rules, distinguish between professional discipline and malpractice, identify what constitutes neglect, and apply these standards to MPRE-style scenarios. You will also understand the consequences of failing to exercise diligence and care, and how to avoid common pitfalls tested on the MPRE.

MPRE Syllabus

For the MPRE, you are required to understand the ethical obligations of lawyers regarding competence and diligence. This article focuses on the following syllabus points:

• The duty to provide competent representation (knowledge, skill, thoroughness, and preparation).
• The obligation to act with reasonable diligence and promptness.
• Managing workload to prevent neglect of client matters.
• The difference between professional discipline and malpractice.
• The consequences of failing to exercise diligence and care.
• The responsibilities of supervising and subordinate lawyers regarding diligence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes a lawyer’s duty of diligence?
   1. Acting only when the client requests action.
   2. Pursuing a client’s matter with reasonable promptness and commitment until completion.
   3. Delegating all tasks to non-lawyer staff.
   4. Prioritizing new clients over existing matters.
2. If a lawyer is too busy to handle a new matter without neglecting current clients, what is the proper course of action?
   1. Accept the new matter and work overtime.
   2. Decline the new matter or refer it to another competent lawyer.
   3. Accept all matters and address delays as they arise.
   4. Let the client decide if delay is acceptable.
3. A lawyer misses a filing deadline due to vacation, but the client suffers no loss. Is the lawyer subject to discipline?
   1. Yes, because neglect occurred regardless of harm.
   2. No, because the client was not harmed.
   3. No, if the lawyer apologizes.
   4. Yes, only if the client files a complaint.
4. Which is NOT required for competent representation?
   1. Legal knowledge.
   2. Skill.
   3. Zealousness at all costs.
   4. Adequate preparation.

Introduction

Competence and diligence are core duties for every lawyer. The Model Rules require lawyers to provide services with the necessary knowledge, skill, thoroughness, and preparation, and to act with reasonable diligence and promptness. These duties ensure that clients receive effective legal assistance and that the legal system functions efficiently.

Key Term: Competence
The obligation to possess and apply the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Key Term: Diligence
The duty to act with reasonable commitment and promptness in representing a client, pursuing a matter to completion, and avoiding neglect.

The Duty of Competence

A lawyer must provide competent representation. This means having the legal knowledge and skill required for the matter. In most cases, a general practitioner’s level of competence is sufficient, but some matters require specialized knowledge.

If a lawyer lacks experience in a particular area, competence can sometimes be achieved through reasonable preparation or by associating with a lawyer of established competence. However, a lawyer should not accept a matter if competence cannot be achieved without unreasonable delay or risk to the client.

Key Term: Reasonable Preparation
The process of acquiring the necessary knowledge and skill for a matter through study or association, provided it does not cause undue delay or harm to the client.

The Duty of Diligence

Lawyers must act with reasonable diligence and promptness. This includes:

• Committing to the client’s interests despite inconvenience or obstacles.
• Controlling workload to ensure all matters are handled properly.
• Following through on all matters until completion, unless properly terminated.
• Avoiding procrastination and unnecessary delay.

Neglecting a client’s matter, even if no harm results, can lead to discipline. Diligence does not require using offensive tactics or pressing for every possible advantage, but it does require steady, attentive progress.

Key Term: Neglect
Failing to pursue a client’s matter with the attention and promptness required, including missing deadlines or failing to communicate.

Managing Workload and Delegation

A lawyer must not accept more work than can be handled competently and diligently. Illness, personal issues, or reliance on subordinates do not excuse neglect. Supervising lawyers must ensure that associates and staff are properly trained and monitored.

If a lawyer cannot handle a matter due to workload, the lawyer should decline or refer the case. Accepting a matter that cannot be handled competently or diligently is itself a violation.

Supervision and Subordinate Lawyers

Supervising lawyers are responsible for ensuring that all lawyers and staff in the firm comply with the duties of competence and diligence. Subordinate lawyers must also comply, even if acting under direction, unless following a supervisor’s reasonable resolution of an arguable question of professional duty.

Professional Discipline vs. Malpractice

Discipline for lack of competence or diligence does not require client harm. Malpractice, however, requires proof of negligence, causation, and damages. A lawyer may be disciplined even if the client suffers no loss, and may be liable for malpractice if the client is harmed by the lawyer’s failure to act competently or diligently.

Worked Example 1.1

A lawyer is retained to file a personal injury claim. The lawyer is busy with other matters and fails to file the complaint before the statute of limitations expires. The client loses the right to sue.

Is the lawyer subject to discipline and civil liability?

Answer:
Yes. The lawyer failed to act with reasonable diligence and promptness, resulting in neglect. This is grounds for professional discipline. Because the client suffered harm (loss of the claim), the lawyer is also likely liable for malpractice.

Worked Example 1.2

A solo practitioner is hospitalized unexpectedly. She has not arranged for another lawyer to handle client matters during her absence. Several deadlines are missed, but clients do not lose any rights.

Is the lawyer subject to discipline?

Answer:
Yes. The duty of diligence requires lawyers, especially solo practitioners, to have a plan to protect client interests in case of disability or absence. Neglect can result in discipline even if no harm occurs.

Worked Example 1.3

A lawyer accepts a complex tax case but has no experience in tax law. The lawyer spends several weeks studying the area and consults with an experienced tax attorney before advising the client.

Is the lawyer’s conduct proper?

Answer:
Yes. If the lawyer acquires the necessary knowledge through reasonable preparation or association, and does not cause unreasonable delay or harm, the duty of competence is satisfied.

Exam Warning

On the MPRE, do not assume that a lack of harm to the client excuses neglect. A lawyer can be disciplined for failing to act diligently or competently even if the client ultimately suffers no loss.

Revision Tip

Always check whether a scenario involves neglect, delay, or inadequate preparation. Look for facts showing missed deadlines, poor communication, or overwork.

Key Point Checklist

This article has covered the following key knowledge points:

• Competence requires legal knowledge, skill, thoroughness, and preparation.
• Diligence means acting with reasonable promptness and commitment.
• Neglect can lead to discipline even if the client is not harmed.
• Lawyers must control their workload to avoid neglecting any client.
• Supervising lawyers are responsible for ensuring diligence and competence in their firm.
• Malpractice requires client harm; discipline does not.
• Solo practitioners must have a plan to protect client interests during disability or absence.

Key Terms and Concepts

• Competence
• Diligence
• Reasonable Preparation
• Neglect