Sunday, November 1, 2009

Like most lawyers I know, I take my ethical duties pretty seriously.  Yes, lawyers have ethics.  Go ahead and get your lawyer jokes out of your systems now before you resume reading.  We have a whole big list of rules we have to follow.  We have to take a class on those rules to graduate from law school.  And aside from the bar exam, we also have to take a special test just on those ethical rules.

(Happily, as a public defender, I don't have to worry about all the rules that deal with clients' money because those seem to be the ones most likely to get your ticket punched.)

In this state, one of the rules states that we are required to report when we observe ethical violations by our fellow attorneys.  Failing to report another attorney's misdeeds is in itself an ethical violation.  In theory, I appreciate this rule.  We should all be tasked with keeping our profession honest and ethical.  But in the real world, it's the hardest ethical rule to live with.  Because it's not always that easy to know when you've witnessed an ethical violation.  Some are obvious, but they aren't all so clear. 

Especially since Rule 1.1 is "Competence."  So I'm ethically obligated to report the attorneys that I think are incompetent.  Oy.  Obviously, not all lawyers are the same.  Some are really good at research.  Some are great in front of juries or argue well.  Some are better writers.  The best lawyers combine all of those skills.  But even the best lawyers can have an off day.  They might fail to catch a relevant case or leave some embarrassing typos in a brief.  Not every oral argument can be memorable oratory.  And there are some mediocre lawyers, too.  But there's a difference between mediocrity and incompetence.  So if I see a performance that I think is particularly poor, does that truly mean that particular lawyer has violated Rule 1.1?  In short, how bad does a lawyer have to be to be considered "incompetent?"

I struggle with this because on the one hand, I want to protect those clients who have placed their trust in someone who did not deserve it, but on the other hand, judging a colleague to be incompetent is not something I want to take lightly.  It's a very uncomfortable position to be in.  Going to the disciplinary board with an accusation that a fellow lawyer is incompetent is a pretty big step.  It's especially big to report someone for that rule.  That label of "incompetent" is so, so harsh.  No lawyer wants to get that letter.  Knowing how much anxiety I would feel upon getting that letter, I don't want to subject any other lawyer to that.  But, back on that first hand, some lawyers really are incompetent and shouldn't be allowed to take money from people.

So how do you decide which lawyers are the incompetent ones who really should be reported to the disciplinary folks?  I have yet to figure that out.

1 comment:

Transplanted Lawyer said...

I agree that this is a struggle -- obviously the rule is aimed at something more than getting the law wrong from time to time. There are some ideas I can throw out -- bearing in mind that California has no cognate ethical rule so for me this is a theoretical exercise. My basic thought is, you learn by doing in this field, but you also have to have the humility to get some help when you're a newbie.

1. Biting of WAAAY more that you can chew; in your field that might be a first-year attorney taking on a capital murder trial. Without getting some help from a more experienced attorney

2. Repeatedly missing filing deadlines and appearances, without taking some kind of reasonable action to correct future lapses. Attorneys can't be expected to remember deadlines and waived-notice appearance dates the way waiters can just remember "hold the onions" on an order.

3. Not only getting the law wrong, but ignoring suggestions to do research aimed at educating the attorney to educate himself.

Making mistakes is one thing. Not using the resources of the profession to self-correct those mistakes could be a standard for what is "incompetent."

 
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