Competence, Diligence, Communication, and Scope of Representation

Both California Rule 1.1 and ABA Model Rule 1.1 open with the same core command: a lawyer shall provide competent representation, meaning the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer can supply competence by attaining it (learning the area), by associating with a lawyer who is competent, or, in an emergency, by handling a matter with which the lawyer lacks the requisite skill so long as the assistance is limited to what is reasonably necessary.

The crucial California wrinkle appears in Rule 1.1(b), which defines the disciplinable violation as a failure that is INTENTIONAL, RECKLESS, GROSSLY NEGLIGENT, OR REPEATED. This is a deliberate elevation of the threshold above the Model Rule. Under the Model Rules, a single act of incompetence can in theory be sanctionable; in California, an isolated instance of ordinary negligence is a malpractice problem and a potential civil claim, but it is not, standing alone, a competence violation warranting discipline.

To discipline under California Rule 1.1 the State Bar must show a culpable mental state — recklessness or gross negligence — or a pattern of repeated failures. Bar essays love to test this distinction by giving you a lawyer who botches a single deadline or misreads one statute: the disciplined answer notes that this may expose the lawyer to a malpractice suit but explains that, under Rule 1.1(b), discipline requires the heightened culpability or repetition that the facts may or may not supply.

Note that competence also embraces technological competence: a lawyer must understand the benefits and risks of the technology relevant to the representation, including e-discovery and the security of client data.

California Rule 1.3 and ABA Model Rule 1.3 both require a lawyer to act with reasonable diligence and promptness. As with competence, California raises the culpability floor: Rule 1.3(a) makes the violation a failure to act with reasonable diligence that is intentional, reckless, repeated, or grossly negligent, and Rule 1.3(b) defines reasonable diligence as acting with commitment and dedication to the client's interests and not neglecting or disregarding, or unduly delaying, a legal matter entrusted to the lawyer.

Procrastination that prejudices a client, missing a statute of limitations, or simply sitting on a matter can all violate the diligence duty if the requisite culpability is present. Communication duties run in parallel.

California Rule 1.4 and ABA Model Rule 1.4 both require a lawyer to promptly inform the client of any decision or circumstance requiring the client's informed consent, to reasonably consult with the client about the means of pursuing objectives, to keep the client reasonably informed about the status of the matter, to promptly comply with reasonable requests for information, and to advise the client about any relevant limitation on the lawyer's conduct when the lawyer knows the client expects assistance the rules forbid.

California Rule 1.4 also expressly requires the lawyer to communicate any written settlement offer, and (under Rule 1.4.1) to promptly communicate all amounts, terms, and conditions of any oral settlement offer in a civil matter or any written offer to settle, and to communicate the terms of significant plea or settlement proposals in criminal and civil matters.

Layered on top is Business & Professions Code section 6068(m), an independent statutory duty to respond promptly to reasonable client status inquiries and to keep clients reasonably informed of significant developments — a frequent California essay add-on that the Model Rules do not separately codify.

California Rule 1.2 and ABA Model Rule 1.2 divide decision-making authority between client and lawyer. The client controls the OBJECTIVES of the representation; the lawyer controls the MEANS, in consultation with the client.

Certain decisions are reserved to the client because they are too fundamental to delegate: whether to settle a civil case, and in a criminal case whether to plead guilty, whether to waive a jury trial, whether to testify, and whether to appeal. A lawyer who accepts or rejects a settlement without authority, or who waives a client's jury-trial right without consent, violates Rule 1.2 even if the lawyer believed the decision was strategically wise.

The means/objectives line is not always crisp — a decision about which witnesses to call or which legal theory to press is ordinarily a 'means' question for the lawyer — but when the means decision implicates the client's expense, third-party burdens, or moral concerns, the lawyer must consult. A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social, or moral views or activities.

Importantly, Rule 1.2 permits a lawyer to LIMIT the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent — for example, an unbundled engagement to draft a single document or to appear for one hearing. The limitation must still leave the client adequately served; a lawyer cannot use a scope limitation to escape the duty of competence within the agreed scope.

A lawyer may give an honest opinion about the actual consequences that appear likely to result from a client's conduct, and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law. But a lawyer may NOT counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent. In California this prohibition is set out in Rule 1.2.1, which closely tracks ABA Model Rule 1.2(d). The line between permissible advice and impermissible assistance is the bar examiner's favorite trap.

Explaining to a client what the law forbids and what the penalties are is proper counseling; helping the client structure a transaction to perpetrate a fraud, drafting documents the lawyer knows will be used to deceive, or advising the client how to conceal a crime crosses into prohibited assistance. California adds a notable carve-out reflecting state law: a lawyer may counsel a client regarding the validity, scope, and meaning of California laws that conflict with federal law (most prominently, California's cannabis laws), provided the lawyer also advises the client about related federal law and policy.

When a client announces an intention to pursue a clearly criminal or fraudulent course, the lawyer's options are to counsel against it, to decline assistance, and — if continued representation would require the lawyer to facilitate the wrongdoing — to withdraw under Rule 1.16. If the lawyer's services have already been used, the lawyer may need to take remedial steps, including, in some circumstances, disaffirming work product (a 'noisy withdrawal' concept that California treats more cautiously than the Model Rules because of California's narrower confidentiality exceptions).

Decisions Reserved to the Client vs. the Lawyer

Exam Hooks

• CA discipline for incompetence/lack of diligence needs intentional/reckless/grossly negligent/repeated conduct — ordinary negligence is malpractice, not automatic discipline.
• § 6068(m) is a separate statutory communication duty to flag on CA essays.
• Settlement, plea, jury waiver, testifying, and appeal are CLIENT decisions.
• Advising on the law is fine; assisting known crime/fraud is barred (Rule 1.2.1).