SECTION .0100 - CLIENT‑LAWYER RELATIONSHIP

 

27 NCAC 02 Rule 1.01   Competence

A lawyer shall not handle a legal matter that the lawyer

knows or should know he or she is not competent to handle without associating

with a lawyer who is competent to handle the matter. Competent representation

requires the legal knowledge, skill, thoroughness, and preparation reasonably

necessary for the representation.

 

Comment

 

Legal Knowledge and Skill

[1]  In determining whether a lawyer employs the requisite

knowledge and skill in a particular matter, relevant factors include the

relative complexity and specialized nature of the matter, the lawyer's general

experience, the lawyer's training and experience in the field in question, the

preparation and study the lawyer is able to give the matter, and whether it is

feasible to refer the matter to, or associate or consult with, a lawyer of

established competence in the field in question. In many instances, the

required proficiency is that of a general practitioner. Expertise in a

particular field of law may be required in some circumstances.

[2]  A lawyer need not necessarily have special training or

prior experience to handle legal problems of a type with which the lawyer is

unfamiliar. A newly admitted lawyer can be as competent as a practitioner with

long experience. Some important legal skills, such as the analysis of

precedent, the evaluation of evidence, and legal drafting, are required in all

legal problems. Perhaps the most fundamental legal skill consists of

determining what kind of legal problems a situation may involve, a skill that

necessarily transcends any particular specialized knowledge. A lawyer can

provide adequate representation in a wholly novel field through necessary

study. Competent representation can also be provided through the association of

a lawyer of established competence in the field in question.

[3]  In an emergency, a lawyer may give advice or assistance

in a matter in which the lawyer does not have the skill ordinarily required

where referral to, or consultation or association with, another lawyer would be

impractical. Even in an emergency, however, assistance should be limited to

that which is reasonably necessary under the circumstances, for ill-considered

action under emergency conditions can jeopardize the client's interest.

[4]  A lawyer may accept representation where the requisite

level of competence can be achieved by reasonable preparation. This applies as

well to a lawyer who is appointed as counsel for an unrepresented person.

 

Thoroughness and Preparation

[5]  Competent handling of a particular matter includes

inquiry into, and analysis of, the factual and legal elements of the problem,

and use of methods and procedures meeting the standards of competent

practitioners. It also includes adequate preparation. The required attention

and preparation are determined, in part, by what is at stake; major litigation

and complex transactions ordinarily require more extensive treatment than

matters of lesser complexity or consequence. An agreement between the lawyer

and the client regarding the scope of the representation may limit the matters

for which the lawyer is responsible. See Rule 1.2(c).

 

Retaining or Contracting with Other Lawyers

[6]  Before a lawyer retains or contracts with other lawyers

outside the lawyer’s own firm to provide or assist in the provision of legal

services to a client, the lawyer should ordinarily obtain informed consent from

the client and must reasonably believe that the other lawyers’ services will

contribute to the competent and ethical representation of the client. See

also Rules 1.2 (allocation of authority), 1.4 (communication with client),

1.5(e) (fee division), 1.6 (confidentiality), and 5.5(a) (unauthorized practice

of law). The reasonableness of the decision to retain or contract with other

lawyers outside the lawyer’s own firm will depend upon the circumstances,

including the education, experience, and reputation of the nonfirm lawyers; the

nature of the services assigned to the nonfirm lawyers; and the legal

protections, professional conduct rules, and ethical environments of the

jurisdictions in which the services will be performed, particularly relating to

confidential information.

[7]  When lawyers from more than one law firm are providing

legal services to the client on a particular matter, the lawyers ordinarily

should consult with each other and the client about the scope of their

respective representations and the allocation of responsibility among them. See

Rule 1.2. When making allocations of responsibility in a matter pending before

a tribunal, lawyers and parties may have additional obligations that are a

matter of law beyond the scope of these Rules.

 

Maintaining Competence

[8]  To maintain the requisite knowledge and skill, a lawyer

should keep abreast of changes in the law and its practice, including the

benefits and risks associated with the technology relevant to the lawyer’s

practice, engage in continuing study and education, and comply with all

continuing legal education requirements to which the lawyer is subject.

 

Distinguishing Professional Negligence

[9]  An error by a lawyer may constitute professional

malpractice under the applicable standard of care and subject the lawyer to

civil liability. However, conduct that constitutes a breach of the civil

standard of care owed to a client giving rise to liability for professional

malpractice does not necessarily constitute a violation of the ethical duty to

represent a client competently. A lawyer who makes a good-faith effort to be

prepared and to be thorough will not generally be subject to professional

discipline, although he or she may be subject to a claim for malpractice. For

example, a single error or omission made in good faith, absent aggravating

circumstances, such as an error while performing a public records search, is

not usually indicative of a violation of the duty to represent a client

competently.

[10]  Repeated failure to perform legal services competently

is a violation of this rule. A pattern of incompetent behavior demonstrates

that a lawyer cannot or will not acquire the knowledge and skills necessary for

minimally competent practice. For example, a lawyer who repeatedly provides

legal services that are inadequate or who repeatedly provides legal services

that are unnecessary is not fulfilling his or her duty to be competent. This

pattern of behavior does not have to be the result of a dishonest or sinister

motive, nor does it have to result in damages to a client giving rise to a

civil claim for malpractice in order to cast doubt on the lawyer's ability to

fulfill his or her professional responsibilities.

 

History Note:        Authority G.S. 84-23;

Eff. July 24, 1997;

Amended Eff. October 2, 2014; March 1, 2003.