Traits of a competent attorney
When you take your car to the mechanic, you want them to possess the skill and knowledge to look under the hood, determine the problem, and then fix it. When you need to see a doctor to check your heart, you want to be seen by a certified cardiologist, not a podiatrist. So why then, when seeking legal services from an attorney, would you want any representation that is less than competent? Quite simply, you wouldn’t.
An attorney has a duty to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Therefore, before an attorney agrees to enter into an attorney-client relationship, that attorney should determine whether he or she possesses the required legal knowledge and skill to competently assist the client. The attorney should consider the complexity of the case, their experience in the matter, and their ability to study the applicable law as well as the practicability of consultation with more experienced counsel, if needed.
Typically, expertise in a particular area of law is not required. If the attorney can analyze the case, research the applicable law, assess evidence, draft legal documents, and apply the law to the case and if the attorney can research and learn new issues or associate with more experienced counsel at a reasonable cost, then that attorney can provide competent representation regarding an originally unfamiliar matter. Otherwise, the attorney should decline representation.
An attorney should also decline representation if the case is too large for the attorney’s practice or if specialized knowledge and proper certification is required; for example, a family law attorney declining representation of a client in a complex patent law issue. However, the attorney can provide limited and reasonably necessary assistance in case of an emergency when a referral to or consultation with other counsel would be unfeasible.
Competent representation also means reasonable thoroughness and preparation, the level of which is partly determined by the complexity of the case. The attorney should investigate all relevant facts and conduct the necessary legal research. Sometimes, with the client’s informed consent, the attorney may consult or contract with other counsel to assist with the client’s case if the attorney believes that it is necessary for competent representation due to the nature and complexity of the case. If that occurs, the scope of work of the respective representations, the fee sharing, and the need for maintaining confidentiality should be discussed with the client and other counsel and be confirmed in writing. However, the attorney should always first determine and discuss with the client the extent of preparation needed as it impacts the client’s costs in the end. For example, challenging a parking ticket will not require the extensive preparation necessary for a complex medical malpractice litigation.
In this world of advanced technology, competence also means that the attorney is expected to understand the benefits and risks associated with relevant technology in representation of the client. This means that the attorney has an ethical duty to competently use available technology and, at the same time, reasonably protect the client’s sensitive information stored on electronic devices or in the cloud. Of course, the attorney is allowed to consider the cost of the resources and is not expected to be tech-savvy or have a national security level of protection. However, a strong password as well as the ability to electronically store and encrypt the data enhance security and are recommended.
Being familiar with these standards when selecting an attorney will help you decide on one who is capable of providing competent representation.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.