Concept
Maintaining Competence
Competence necessary to undertake representation
Maintaining Competence
Model Rule 1.1 commands that a lawyer “shall provide competent representation to a client,” and it defines that representation by the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the work.1 Earlier sections of this chapter asked what a lawyer may do when a matter arrives and the competence is missing: study, associate other counsel, narrow the engagement, or decline. This section asks what the same rule demands across an entire career.
Legal knowledge goes stale. Legislatures amend statutes, courts refine or overrule their decisions, and procedural rules change; the methods of practice shift as well, in how documents are created, stored, searched, exchanged, and protected. A lawyer's knowledge at admission is therefore a snapshot. Because Rule 1.1 asks what the present representation reasonably requires, a lawyer who stopped learning years ago can fall short on a matter that once would have been routine. The client cannot catch the lapse, since a client seldom learns that advice rests on a superseded rule until harm has occurred. The obligation to keep current rests on the lawyer for that reason.
The duty has two parts, and each has its own subsection. The first is the general obligation to follow changes in the law and its practice and to meet continuing legal education requirements. The second applies the same obligation to technology, the one area of change that now touches nearly every practice. Together they turn competence from a credential held at intake into a standard the lawyer must keep meeting.
Keeping Current
The word necessary in Rule 1.1 looks to what the work demands when the lawyer performs it.2 A matter handled today falls under the law as it stands today, so knowledge acquired years ago supplies competence only while it still matches current authority. Comment [8] says how a lawyer keeps that match: the lawyer “should keep abreast of changes in the law and its practice,” “engage in continuing study and education,” and “comply with all continuing legal education requirements to which the lawyer is subject.”3 The same sentence of the Comment also reaches the benefits and risks of relevant technology, which the next subsection takes up.
Two of those three obligations need no outside trigger. Following changes in the law and engaging in continuing study fall on the lawyer's own initiative, and both belong to the knowledge and skill that Rule 1.1 demands, so a lapse in either can breach the competence standard apart from any education requirement. The third obligation points outward. The phrase “to which the lawyer is subject” shows that the content of the requirement comes from the jurisdiction that imposes it, not from the Model Rule.4
The duty runs continuously because Rule 1.1 never marks a point at which the lawyer has finished learning. Each new matter asks the competence question again, and the answer depends on what the lawyer knows when that matter is handled. Routine work carries the greatest risk, since a lawyer who has handled many similar matters has little reason to check whether the governing rule has moved.
Continuing legal education is a separate obligation with a separate source. The Comment lists it beside the duty to follow changes in the law, not in place of it, and the jurisdiction that imposes the requirement defines it.5 A lawyer can miss a credit deadline without ever giving bad advice, and a lawyer who has met every credit can still advise under a superseded rule.
Completed CLE counts as evidence of keeping current, and the evidence is only as strong as the fit between the courses and the lawyer's practice. A credit total counts courses taken, and a course on an unrelated subject adds nothing to the lawyer's command of the law that governs the lawyer's own clients' matters. The lawyer who attends a program on the very amendment affecting the practice, and then acts on it, makes the strongest showing.
Exam stems on this topic describe a lawyer who either followed a change in the law or ignored it, then ask whether the duty was met. Two facts decide the answer: whether the lawyer's knowledge matched the law governing the present matter, and whether the lawyer made the continuing effort the Comment describes. A stem that reports full CLE compliance describes only the regulatory requirement, and a stem that reports decades of experience describes only the past. Neither settles the question until you learn whether the lawyer was current on the law that controls the client's problem.
Technological Competence
The text of Rule 1.1 says nothing about computers, email, or data; the expectation that a lawyer understand technology lives in the Comment.8 In 2012 the ABA amended Comment [8] so that its sentence on maintaining knowledge and skill now reads: “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 relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”9 The preceding subsection covered the continuing-education half of that sentence; this one takes the clause on technology. The amendment changed the Commentary and left the Rule itself alone, so it spells out how the unchanged standard applies when a matter runs through technology.
The Comment singles out technology because Rule 1.1 measures competence by what the representation reasonably requires, and representation today runs through electronic channels. Client confidences travel by email, files sit in cloud storage, and the records a court may order produced exist largely as digital data. A lawyer who emails a document without knowing what the file carries can disclose material the lawyer never meant to share, and a lawyer who does not know how a client's records are stored cannot find, preserve, or produce them. Neither failure is a mistake of law: a lawyer could know every governing rule and still fail the client.
Electronic discovery shows the duty at its sharpest. It applies with particular force when a lawyer must assist the client in identifying, preserving, reviewing, and producing electronically stored information (ESI), meaning the email, files, and other digital records a dispute may call for, and must seek, as part of due diligence, all relevant information, positive or otherwise, that may relate to the claims at issue.10 The details of discovery procedure belong elsewhere. The point to hold here is the competence duty beneath them.
The duty is applied case by case. It may require a higher level of technical knowledge, depending on the e-discovery issues involved and the nature of the ESI, and even a highly experienced attorney may need to seek assistance in some matters involving ESI.11 Because the language sits in a Comment, an answer on this topic should say that it appears there and not in the black-letter text of Rule 1.1. These are Model Rules, so the governing text is the version the lawyer's own jurisdiction has adopted.
A lawyer who lacks the technical competence a matter requires has three options:12
- Acquire sufficient learning and skill before performance is required.
- Associate with or consult technical consultants or competent counsel.
- Decline the client representation.
These track the general menu taught earlier in this chapter, with one adjustment. Because the missing competence is often technical rather than legal, the helper in the second option can be a technical consultant as well as another lawyer, and a colleague who knows the law of discovery but not how a company's email system retains data would leave the gap open. When the helper is a lawyer outside the firm, the amended Comments 6 and 7 also apply. The lawyer should obtain the client's informed consent and believe that the other lawyer's services will contribute to competent representation, and the two lawyers should consult with each other and the client about the scope of their representation and the allocation of responsibility between them.13 Declining becomes the required path when neither learning nor outside help can deliver competence by the time the work is due, for the reasons given in the discussion of mandatory rejection. Ignoring all three options carries a further cost: lack of competence in e-discovery issues may also lead to a violation of the duty of confidentiality.14
An exam stem will often pair a seasoned litigator with a records-heavy case and invite you to excuse the gap because of the lawyer's general experience. That is the tempting wrong answer.
The two lawyers differ in what each did about the gap, since both began without the needed knowledge. A stem that says only that the lawyer is experienced, or only that the case involves electronic data, has not yet told you whether the duty was met. The deciding facts are whether the lawyer recognized the technical issues and then learned, brought in competent help, or declined.