Boalt: Legal Profession (Fall 2012)
Week Four – Competence & Diligence
September 18, 2012
FAQ’s / All Students Read4.1 / Motion Warriors / All Read; Students with Last Names Beginning A-C Are Ready to Discuss
4.2 / Criminal Defense Work? Me? Seriously? / All Read; Students D-J Are Ready to Discuss
4.3 / Quick Self-Assessment / All Read; K-L ready to discuss
4.4 / John Monroe / All Read:M-R ready to discuss
4.5 / From 3L to 401(k): Seasons of an Attorney’s Life / All Read: S-Z ready to discuss
4. Competence and Diligence
Rules: MR 1.1 & 1.3 Read those Rules and Comments!
4.1.Questions
(Q 4.1) What is the duty of competence?
(Q 4.2) Is a brand new lawyer competent at anything at all?
(Q 4.3) How can a lawyer gain competence?
(Q 4.4) Can a lawyer help out in an emergency even if she’s not really competent in that area?
(Q 4.5) How does a lawyer maintain competence?
(Q 4.6) How does the duty of competence relate to the tort of legal malpractice?
(Q 4.7) To whom is the duty of competence owed?
(Q 4.8) What is the duty of diligence?
(Q 4.9) What are common causes of non-diligence?
(Q 4.10) Does a solo practitioner have a special duty of diligence?
(Q 4.11) What is the relationship between “zeal” and competence/diligence?
(Q 4.1)What is the duty of competence?
Competence is the ability to do the task at hand. Usually, we define it with reference to legal knowledge, skill, thoroughness, and preparation.
In addition to legal competence, you will need competence in dealing with people. Some people are intimidated by lawyers, and some clients will have different cultural backgrounds than you. Although we will deal with some of those issues in the next unit, on “Abide, Consult & Communicate,” your ability to successfully interact with clients and co-workers is a huge part of your competence.
Competence includes “cultural competence.” Your clientele might come from various cultural settings, and you will need to be sensitive to those differences.
(Q 4.2) Is a brand-new lawyer competent at anything at all?
Great question. Brand-new lawyers are typically competent to do legal matters that involve analysis of precedent, evaluation of evidence, and basic legal drafting. More difficult, esoteric matters may demand higher levels of competence.
(Q 4.3) How can a lawyer gain competence?
If a lawyer lacks competence for a matter, the lawyer is ethically permitted to undertake the matter and gain the competence through study or through associating co-counsel who is competent in that area.
(Q 4.4) Can a lawyer help out in an emergency even if she’s not really competent in that area?
If an emergency leaves a lawyer with no time to gain competence, and if the lawyer cannot find another lawyer to undertake the matter, the lawyer may do the best she can and, once there is an opportunity to obtain a competent lawyer for the client, may then transition the matter. For example, if you lack any criminal law expertise and your brother-in-law telephones you at 2:00 am on Sunday to say that he’s been arrested, and if there is no ready alternative, you could handle the emergency until Monday, at which time you would presumably find a competent criminal defense lawyer for him.
(Q 4.5) How does a lawyer maintain competence?
Because the law changes, lawyers have a duty to maintain competence. Usually this is done simply by staying abreast of the field, reading new cases and statutes, etc. In many states, lawyers are also required to attend a certain number of hours of continuing legal education (CLE) each year.
(Q 4.6) How does the duty of competence relate to the tort of legal malpractice?
Legal malpractice is a tort (duty; breach; causation; damages). The “breach” element is usually proven by showing that the lawyer’s conduct fell below the “standard of care” in that legal community. Quite often, but not always, the malpractice action is premised on the theory that the lawyer’s work was incompetent.
Although this course is not focused on legal malpractice, it is worth noting that the causation element in legal malpractice is treated differently than causation in most torts. In a legal malpractice case, the plaintiff must establish the difficult element of “but for” causation rather than the easier element of “substantial factor” causation. The plaintiff must prove that but for the lawyer’s breach the client would have obtained some better result. That means that the client must prove a “case within a case”—it must prove how the legal matter would have gone had the lawyer practiced competently. That could even require a plaintiff to put on a mini-trial of the original trial it lost due to the lawyer’s poor performance. (For most other tort causes of actionin the US, plaintiffs need only prove that the defendant’s breach was a “substantial factor” in bringing about the bad result.)
(Q 4.7) To whom is the duty of competence owed?
Courts want lawyers to be focused on the needs of clients rather than on the needs of non-clients. For that reason, the general rule is that only clients can sue lawyers for incompetence.
There has been one tightly-defined exception to that rule. When a lawyer drafts a will, trust, or similar legal instrument for a client who subsequently dies, and due to the lawyer’s malpractice the inheritance does not pass to the intended third-party beneficiary, most jurisdictions permit that beneficiary to sue the lawyer for legal malpractice. Courts have reasoned that because the client is dead s/he cannot bring the suit, and given that the beneficiary is required to prove the intentions of the deceased, the beneficiary will be “stepping into the shoes” of the client.
(Q 4.8) What is the duty of diligence?
You have to keep working hard, in a timely way, despite opposition, obstruction or personal inconvenience to you. (Personal crises do not excuse your lack of diligence!)
As comment [2] to MR 1.3 notes, “A lawyer’s work load must be controlled so that each matter can be handled competently.” (You might be aware that public defenders across the country are trying to use that Comment to justify lighter workloads. See, e.g., cases cited in Section 1.2, n. 10. Some public defenders have workloads of 400-600 cases.)
(Q 4.9) What are common causes of non-diligence?
Procrastination; working less diligently on matters you don’t like; heavy workloads; poor time management skills; and poor supervision and guidance by bosses.
(Q 4.10)Does a solo practitioner have a special duty of diligence?
In some states, it is suggested that solos should have a written plan with instructions just in case the solo dies or is incapacitated. (MR 1.3, Cmt. [5])
(Q 4.11)What is the relationship between “zeal” and competence/diligence?
The rule on diligence governs the modern duty of zeal. Under the modern approach in the rules, “zeal” is praiseworthy so long as it does not include nasty, over-aggressive tactics and so-called “Rambo-style” lawyering. In the good sense, “zeal” is always bounded by the lawyer’s duties to the court and is exemplified by the lawyer’s diligence, enthusiasm, and concern for the client’s legitimate objectives.
4.1.Example: MotionWarriors (Stephanie Francis Cahill), ABA Journal, Nov. 2002.
High-profile trial lawyers representing unpopular clients are often rewarded with big fees and media attention.
Then there are the solo and small-firm lawyers who represent what many see as society's rabble. They know the money might be better elsewhere, but for them, the trade-off isn't worth it.
These motion warriors are on the front lines of the American justice system, slugging it out for ordinary people. In court all day every day, they all seem to know one another and those who staff the courthouses. They chat with clerks and sheriff's deputies, juggling multiple appearances before multiple judges.
In Chicago most of these lawyers practice at the Richard J. Daley Center, Cook County's civil courts building. The 31-story structure was built in 1965 in Chicago's Loop. Most floors have two rows of courtrooms. Some elevators only go to certain floors, making navigation of the building tricky.
Other lawyers spend their days at the county's criminal division courthouse about 6 miles southwest of the Loop, where air conditioning may be on the fritz and ashtrays are still provided in some restrooms. Smoking in the building is prohibited, but the policy seems to deter few.
We talked to four lawyers who are well-known and respected members of this Chicago brigade. They represent alleged slumlords, drunk drivers, abusive parents and murderers.
Honesty and reliability are a big part of the motion warrior strategy. You're only as good as your word, they say. Being in court all the time for so long, it doesn't take long to determine which lawyers are trustworthy.
Despite that commitment to the truth, they say many people disapprove of their clients.
"I tell them that everybody is entitled to representation," says Mitchell F. Asher, who has a substantial number of landlord clients. "There are three sides to every story: yours, theirs and the truth. As long as we have an adversarial system, which is the best system in the world, everything gets worked out."
JOEL KESSLER
Joel Kessler doesn’t dress like a lawyer. He often wears black jeans to court.
Today, the jeans accompany a gray sports coat and a tie featuring the Tasmanian Devil driving a car. Kessler's wavy hair looks air-dried and does its own thing.
After 33 years in practice, Kessler can wear what he wants. And he doesn't hesitate to turn away clients.
"This is a business. It's not a crusade," he says. "If a client doesn't want to work with me, I don't need him."
Defending people charged with driving under the influence, Kessler says, is not "a morality issue." The practice requires a certain character, someone who realizes that some clients do wrong. "Some of them are very bad people who have done horrible things," he says. "But if you chose to take the client on, you have an obligation to that client."
Young lawyers need to know that, he says, and they need to understand that clients will lie to them.
Kessler ferrets out the truth by initially meeting clients in person. On the phone, he can't tell by a person's body language whether he or she is telling the truth. If he can't determine the truth in person, Kessler may ask the same question five times, in five different ways. If that doesn't work, he probably won't represent the person.
Kessler's day starts out at traffic court in Maywood, a near-west suburb of Chicago. For the most part, defendants in the courtroom are middle-aged, accompanied by spouses or significant others. Some appear to be hung over, and, indeed, the smell of alcohol is apparent when they walk by.
Kessler's first client, a man in his mid-40s who arrives at the courthouse alone, is facing a one- year county jail sentence for driving on a suspended license. Kessler gets him a deal for probation with mandatory community service.
The client is not thrilled.
"Clients always think they should get a better deal," Kessler says. "Every client's always got an excuse about why he or she was doing something, assuming they actually did something."
The clients he represents may have a problem with the truth, but Kessler says his reputation is built on honesty.
"You have to make sure that your ethics are absolutely unquestionable. If you say you're going to do something, you do something," he says. "I don't think you have to volunteer information, but if asked, you have to give an honest answer."
Next it's on to downtown Chicago, where he has four hearings scheduled at the Daley Center. He drives a black sport utility vehicle with zebra-print seat covers. Duck decoys are lined up on the dashboard. Kessler does not hunt or bird-watch, but he has a fondness for the wooden figures. He also keeps some in his downtown office.
Is Kessler a good driver, given his knowledge of traffic laws?
"That depends on who you talk to—me or my wife," he says just before running a red light at an expressway onramp. "Nobody stops for those; don't look so surprised."
Kessler gets to the Daley Center about 11 a.m. In his first matter, a client was videotaped during a DUI arrest, and Kessler files a motion to suppress the tape's audio portion.
"Under Illinois law, you can't audiotape something without consent. My guy didn't know he was being taped," Kessler says.
He has two other appearances on minor traffic violations. Neither judge has arrived yet, so Kessler paces the hall, keeping an eye on both courtrooms.
"Showtime," he says as one judge appears. The matter takes about four minutes. The second one is equally short.
Then it's back upstairs, where Kessler, 57, is defending a man charged with driving under the influence on a suspended license. Kessler attempts to set aside an additional summary license suspension from that arrest on the basis that his client, who was picked up at a roadside safety check, was arrested after he refused a Breathalyzer test. Under Illinois law, Kessler says, the arrest is supposed to be made first, before the test is administered.
The arresting officer shows up to testify. He's somewhat famous among the state's attorneys and the informal DUI defense bar for not following procedure, Kessler says.
Kessler walks around the defense table while questioning the officer. He notes that the officer listed the same time, 11:55 p.m., in three places on the arrest sheet: for the defendant's stop, the reading of his rights and his refusal of the Breathalyzer. Kessler also asks the officer why his signature and badge number do not appear on the arrest's carbon copy.
The officer, a small man who appears to be in his 50s with a large, gold eagle medallion around his neck, winces before he answers Kessler's questions. In between winces, he leans back in the witness chair with one arm behind his head. The officer testifies that he determined the defendant was drunk after speaking with him.
Kessler objects on the basis that the officer had not yet read the defendant his Miranda rights. Ultimately, the officer testifies that he arrested the defendant after he refused the Breathalyzer test. The judge is unfamiliar with case law on the required order of the procedure and asks for a citation. Kessler heads up to the 29th-floor law library.
He finds the citation after combing through six books and returns to the fourth-floor courtroom, caption and case number in hand. The judge grants Kessler's motion that there was no basis for summary suspension because procedure established by statute and case law was not followed during the arrest.
Kessler says this procedure violation happens probably 80 percent of the time in DUI cases. What's difficult is getting an officer "to admit that he didn't do what he was supposed to do. They probably do that 5 percent of the time."
MITCHELL F. ASHER
Mitchell Asher estimates that he represents thousands of landlords. He is about 5'10" with broad shoulders. He wears a pinkie ring, and his hair is slicked back. Most people know him as "Mickey." During the week, he can be found striding through the Daley Center hallways, pulling a large trial bag on wheels.
Along the way, Asher, 58, stops to chat with other lawyers in the hallways and elevators. The conversations, usually about building code or eviction laws, are brief. Sometimes he doesn't even stop but shouts answers over his shoulder or through a closing elevator door.
"You have to know the code" to represent landlords, says Asher, referring to the Chicago Building Code. "Most attorneys don't study the code."
As an example, he mentions a single-room-occupancy building on South State Street, south of the Loop and a long way from the city's gentrified North Side. In this structure, the rooms are literally cages.
"There's no law against having cages," Asher says, displaying his own knowledge of the code. "All [the landlord] had to do was put in sprinklers."
Many of his landlord clients are charged with building code violations.
"If the client says he fixed some violations and he didn't, I get rid of the client. I don't need that," he says. "When I tell the judge the [repairs] are done, I have to believe it, and the judge has to believe me. All you've got is your credibility."
Asher grew up with uncles and cousins who practice law. At age 12 he started clerking for lawyers during the summer, filing motions in court. His former bosses "knew a little bit about everything, especially the general practitioners." He learned a lot from them on matters inside and outside of court.
After college, he enrolled at Chicago's Northwestern University School of Law. "I'd been in court more than the law professors," he says. "They'd ask me how to do things."
The school "taught everybody to be appellate lawyers," which never appealed much to Asher. "I don't want to have to write all the time," he says. "I'd be bored. I love being in court."