Concept
Declining Incompetent Representation
Competence necessary to undertake representation
Declining Incompetent Representation
Model Rule 1.1 requires competent representation, which it defines as the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.1 Because the rule describes what the lawyer must deliver, it operates at intake. A lawyer who accepts a matter while knowing that the necessary competence will not exist when the work comes due has promised a performance the rule forbids.
The earlier sections gave the lawyer four ways to close a competence gap: study before the work is due, association with a lawyer of established competence, a narrower engagement, and help limited to a genuine emergency. Each keeps the representation going by supplying what is missing. This section covers the lawyer who has exhausted them. When the study cannot be finished in time, no competent colleague can be brought in on workable terms, the engagement cannot be trimmed to something the lawyer can handle, and no emergency justifies a stopgap, turning the matter down is the only step left.
The question arises in two settings that differ in who decides whether the lawyer takes the matter. In private practice the lawyer decides, so the duty rests on her own honest assessment, and the first subsection teaches when that assessment requires refusal. When a court appoints a lawyer for a person who cannot afford one, the court has its own interest in seeing that the person is represented, and a lawyer who wants relief must support the request with a showing. The second subsection teaches what that showing is.
Mandatory Rejection
A lawyer facing a matter beyond her present competence tests four paths, and the order in which she tests them shows when declining stops being optional. In the e-discovery context, a lawyer who lacks the required competence has three options: acquire sufficient learning and skill before performance is required, associate with or consult competent counsel or technical consultants, or decline the representation.2 The same menu fits any competence gap. The fourth tool, taught earlier, is a reasonable limit on the scope of the engagement, which removes the part of the job that outruns the lawyer's competence.
The first three paths share a feature: each keeps the engagement alive by supplying competence, whether through the lawyer's own study, another lawyer's expertise, or a smaller job. Declining alone ends the engagement, which gives a lawyer with a fee on offer a reason to talk herself past the earlier steps. The rule is mandatory here because lawyer and client bear the risk differently. The lawyer collects the fee for accepting, the client bears the loss if the work falls short, and the client usually cannot judge whether the lawyer has what the matter needs. Some of those losses cannot be repaired, as when a limitations period runs out unnoticed. A permissive rule would leave the decision with the person whose interests favor accepting, at the moment the client is least able to check it. Refusal at intake costs the client little, since qualified counsel can still be found while remedies remain open.
Mandatory rejection is a narrow exception to a lawyer's general freedom to choose clients. A lawyer ordinarily owes no duty to take any particular client and may refuse a matter because the fee is low, the docket is full, or the client is unappealing. Inability to provide competent service is one of the few situations in which that freedom narrows to a duty. The point holds even where lawyers are expected to accept assignments. The comment to Rule 6.2, as quoted in Cunningham v. Sommerville, lets a lawyer seek to decline a court appointment for good cause and says that good cause exists if the lawyer could not handle the matter competently.5 The West Virginia court added that Rule 6.2(a) authorizes a lawyer to avoid an appointment when the representation is likely to result in a violation of the professional rules, such as the rule on competent representation.6 The next subsection returns to appointments.
Competence can also fail for a reason that neither study nor association repairs: the lawyer's own physical or mental condition. Thoroughness and preparation, two of the four ingredients in Rule 1.1, come from time, stamina, and clear judgment, so a lawyer whose illness, injury, or impairment will keep her from the work cannot supply them however well she knows the law.7 The shortfall lies in capacity, not learning. Association helps only if another lawyer will actually do the work, which makes the arrangement a handoff in substance. The timing question is the same as in every competence problem: will the condition prevent competent service when the work comes due? The separate rules on declining and ending a representation also bear on impairment, and they are taught elsewhere.
A stem will give you a lawyer who cannot do something and ask whether declining is required. The answer depends on whether the shortfall can be cured by the time the work is due, so a change in the calendar can reverse the result. The same hospitalization would not bar the engagement if the first deadline were a year away, because he would be back and able long before anything fell due.
Set her beside a lawyer offered an unfamiliar field with a first deadline in two weeks, where the field takes months to absorb, no qualified associate is available, and the client refuses to narrow the job. Nothing in that second case will produce competence by the time the work is due, so declining is required. The usual error on this topic is to treat inexperience itself as the trigger for refusal. Inexperience requires refusal only when it will outlast the time available and resist every cure. If the problem surfaces after the representation has begun, the rules on withdrawal govern, and they belong to a separate reading.
Court Appointments
A court appointment complicates the intake decision because the court, not the client, picks the lawyer. The court has its own interest in seeing that an indigent person is represented, and the lawyer may honestly believe the matter lies beyond what she can handle well. The comment to Rule 6.2, as the West Virginia court quoted it in Cunningham, gives the lawyer relief only for good cause: a lawyer may seek to decline an appointment to represent a person who cannot afford counsel or whose cause is unpopular, and good cause exists if the lawyer could not handle the matter competently.9 Three questions follow. Who must prove the lack of competence, how much must be proved, and what may the court do once the proof is made?
Cunningham itself was decided on a different ground. The petitioner showed that she was entitled to avoid the appointments under Rule 6.2(b), because they would “likely result in an unreasonable financial burden” upon her, and the court awarded the writ of prohibition against enforcement of the trial court's ruling.10 That holding disposed of the case. The court nonetheless added a brief discussion of Rule 6.2(a), which authorizes a lawyer to avoid an appointment likely to result in a violation of the professional rules, in order to guide circuit courts that must appoint “qualified private attorneys.”11 The competence ground was guidance, not the basis for the writ, and that guidance is the material to know for this topic.
The guidance starts from the same premise that governs a lawyer who takes an unfamiliar matter voluntarily. A lawyer appointed to represent an indigent in a criminal case need not necessarily have criminal trial experience to represent the client competently. The appointing court should allow sufficient time for study and preparation and should give serious thought to appointing more experienced co-counsel to assist an inexperienced lawyer.12 The comment to Rule 1.1 states the principle behind this: a lawyer may accept a representation where the requisite competence can be achieved by reasonable preparation, and that holds as well for a lawyer appointed as counsel for an unrepresented person.13 Lack of criminal trial experience therefore does not by itself establish incompetence. Unfamiliarity is a gap, and study or association can usually close it before the work is due.
When a lawyer does resist an appointment on competence grounds, the burden is hers. She must show both that she is incompetent in the particular area of law and that she cannot become competent through study and preparation within a reasonable time. Even then, the court may in its sound discretion appoint a more experienced attorney as co-counsel.14 Each part of the rule answers a distinct problem. The lawyer carries the burden because she alone knows her own background and how quickly she can master a new field. The second half of the showing follows from Rule 1.1, which treats unfamiliarity as curable, so proof of present incompetence shows only a gap, and the live question is whether the gap can be closed in time.15 The co-counsel option lets the court secure quality representation for the client without forcing an unqualified lawyer to proceed alone.
The real estate lawyer differs from a civil litigator who offers only unfamiliarity. He produced evidence that study could not close the gap in the time allowed, and the litigator did not. An answer that stops at “he has never handled a criminal case” therefore misses the second half of the showing. The Standards that Cunningham cites point the same way: emphasizing advocacy skills, they recommend that courts appointing lawyers for indigents in criminal and other eligible proceedings normally select counsel with some trial experience, even if it is limited to civil trials.17 A civil litigator arrives with the advocacy skills, and what remains is learning that study can supply. Other courts have framed the burden and the co-counsel option in similar terms; see, for example, Stern v. County Court.18
The appointment inquiry also differs from the constitutional question whether appointed counsel later rendered effective assistance. Cunningham quotes the Supreme Court in United States v. Cronic for the point that the conclusion against presuming inadequate preparation time was not undermined by the fact that the lawyer was young, that his principal practice was in real estate, or that it was his first jury trial. The character of a lawyer's experience may shed light on his actual performance, the Court said, but it does not justify a presumption of ineffectiveness without an evaluation of that performance.19
Repugnance toward a client or cause follows the same competence reasoning. The comment quoted in Cunningham allows a lawyer to seek to decline an appointment for a person whose cause is unpopular, but only for good cause, and it defines good cause by whether the lawyer could handle the matter competently.20 A lawyer who merely finds a client unpleasant has shown no impairment of service. The analysis changes when the feeling reaches the work itself. Thoroughness and preparation depend on a lawyer's effort and judgment, so a lawyer whose revulsion will drain both cannot supply them.21 Cunningham quotes the practical point that a lawyer who “doesn't have his heart in it” can lose a jury trial in a hurry.22
A stem on this topic usually describes an appointed lawyer who wants relief and asks whether the court must grant it. Details about the lawyer's regular practice, such as civil work or real estate, only begin the analysis. The answer turns on whether she has shown incompetence and an inability to become competent through study in the time allowed, and on whether co-counsel would solve the problem. A stem that stresses financial hardship tests a different ground, Rule 6.2(b), on which Cunningham itself was decided, and that ground does not require proof of incompetence.23