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COMPETENCE, DILIGENCE, AND UNAUTHORIZED PRACTICE I. Professional Responsibility for Lack of Competence or Diligence. A. Taking on Cases you are Not Competent to Handle: Rule 1.1. 1. Generally: When the lawyer would lack competence to represent the client, the lawyer must decline the representation. MR 1.1. 2. Competence: Requires that the lawyer possess and exercise on the client’s behalf “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” MR 1.1 3. Does not require possession of expertise at the beginning of representation: A lawyer is not required to know everything about the client’s legal claim before undertaking representation. It is not a breach of the competence duty for a lawyer to undertake representation without such knowledge if the lawyer will be able to acquire the necessary knowledge with reasonable diligence. 4. Basic, cross-cutting skills and knowledge are always required: Virtually all practicing lawyers in all areas must have certain basic skills to be competent. These basic skills include an understanding of the use of precedent, legal research skills, ability to identify and evaluate a client’s problem, and writing or drafting skill. MR 1.1 Comment. 5. Emergency: In an emergency situation, a lawyer may provide limited assistance to a client in a matter on which the lawyer would ordinarily require further study or research before service was rendered. However, the lawyer must limit this service to that which is necessary under the circumstances. MR 1.1 Comment. B. Neglecting Cases You Have Taken On. MR 1.3, 1.4 1. Diligence: Lawyer’s are obligated to be diligent in their client’s behalf. Diligence requires a persistent pursuit of the client’s matter. MR 1.3. a. Expediting Matters: The duty of diligence is related to the lawyer’s duty to expedite matters consistent with client interests. MR 3.2. b. Starting and Stopping: The most common pattern in a diligence duty violation involves a lawyer who begins work on a client’s matter, perhaps even by filing a civil complaint, but then does little or nothing to pursue the matter to a conclusion. c. Inadequate Excuses: Several excuses have been offered for lack of diligence and rejected by the courts. 1. Illness without remedial measures. 2. Lawyer’s personal feelings. 3. “My paralegal did it.” 4. Overwork or other responsibilities. 2. Communication: The communication duty is critical to maintaining a quality lawyer-client relationship. It is related to the duties regarding shared decision-making, competence, and diligence and forms the underpinning of every duty that requires client consent and consultation. MR 1.4 1
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a. Keeping client reasonably informed: A lawyer must keep a client reasonably informed of the status of the client’s matter and must respond to a client’s reasonable requests for information. MR 1.4(a). Per 1.4(a)(1)-(5), a lawyer shall: 1. Promptly inform the client of any decision or circumstance with respect to which
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