• Freelance Attorney Platform
  • (949) 400-0798
  • Skip to main content
  • Skip to footer

Montage Legal Group

  • About
  • Attorneys
  • Services
  • Blog
  • Press
  • Join Platform
  • Hire Freelance Attorneys

From BigLaw to Freelance Law™ Blog

Freelance attorneys modernizing legal practice.

Home Blog ethics When Does a Lawyer Violate California’s Ethical Duty of Competence?

When Does a Lawyer Violate California’s Ethical Duty of Competence?

June 12, 2018

Questions regarding the legal ethical “duty of competence” can arise when law firms outsource legal work to freelance/contract attorneys.  Section 6067 of the California Business & Professions Code recites the attorney’s oath “to faithfully discharge the duties of an attorney at law to the best of his knowledge and ability.” California Rule of Professional Conduct 3-110 requires that an attorney perform legal services “competently,” which the Rule defines as “diligently to apply the learning and skill necessary to perform the member’s duties arising from employment or representation.”  Further, the discussion section of Rule 3-110 states, “The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorneys and non-attorney employees or agents.”

The temporary attorney relationship typically involves a supervising attorney who is responsible for the temporary attorney’s work.  The supervising lawyer assigns the task, provides some guidance, signs the document, and is ultimately responsible for its content.   Attorneys may also choose to seek assistance from other attorneys if they are unfamiliar with a particular area of law.  This is permissible under Rule of Professional Conduct 3-110(C), which states, “If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.”

In order to satisfy the duty of competence, however, the attorney must be able to independently determine whether the “outsourced” work has been done competently.  The attorney therefore must know enough about the issue or subject to competently judge the work.  The attorney may not solely rely on a temporary attorney to discharge the duty of competence.  SDCBA Opinion 2007-1.

There are several recent cases against prominent law firms for alleged failure to properly supervise inexperienced contract attorneys.  A legal malpractice suit filed against McDermott Will & Emery alleges that outside contract lawyers “negligently performed their duties” while screening documents. The suit alleges that McDermott lawyers “negligently performed limited spot-checking of the contract attorneys’ work,” leading to the disclosure of about 3,900 privileged or irrelevant documents. J-M Mfg Co., v. McDermott Will & Emory LLP, No. BC462832 (Cal. Sup. Ct., County of Los Angeles).

The ABA has commented on the importance of using only skilled and experienced contract attorneys in Formal Ethics Opinion 08-451 (August 2008) – “There is nothing unethical about lawyer outsourcing legal…services, provided the outsourcing lawyer renders legal services to the client with the ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,’ as required by Model Rule 1.1.”

Comment 1 to ABA Model Rule 1.1 further states: “In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.”

Best practices dictate hiring only skilled contract or freelance attorneys with the experience necessary to competently perform the quality of legal work all clients deserve, and to exercise competent, independent judgment over the temporary attorney’s work product.

For more information on ethical rules as they apply to freelance lawyering, see Ethics of Contract Lawyering.

Filed Under: ethics

Subscribe to Blog via Email

Enter your email address to receive blog updates via email.

For more information, please email us at [email protected] or call 949-400-0798 for immediate assistance.

Footer

Montage Legal Group

P.O. Box 14455
Irvine, CA 92623

Phone: (949) 400-0798

General Inquiries: [email protected]

To join our platform, email your resume to: [email protected]

For information about joining the Montage platform, please click here. Unfortunately, we cannot do informational phone calls.

Latest News

  • Different Kids, Different Needs: A Conversation About Using Child-Specific Parenting Techniques
  • Happy 2021
  • Do you actually need a full-time job? Try freelance legal work
  • Law Firm Growth During an Uncertain Legal Climate – Part 2: How to Ethically Use Freelance Lawyers & Referral Fees
  • Congratulations to the 2021 OCWLA Officers & Directors

Copyright © 2021 · Terms · Privacy

Legal Disclaimer: Montage Legal Group is not a law firm and does not provide legal representation to clients. Montage provides support solely to attorneys, not end clients. The attorneys affiliated with Montage Legal Group are independent sole practitioners and do not constitute a law firm among themselves. The information provided in this website should not be construed as legal advice. Transmission of information from this website is not intended to create, and its receipt does not constitute, an attorney-client relationship with Montage or any of its individual attorneys or personnel. Use of Montage's services does not establish an attorney-client relationship. Montage will protect the confidentiality of information, but information you provide to Montage may not be afforded legal protection as attorney-client communications. Montage expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this website.