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Attorney Discipline: Competence

By: Steven R. Splitt, Senior Counsel, Appellate Division, Illinois ARDC

October 29, 2018

Competent representation by an attorney is a bedrock ethical requirement. In fact, the first substantive Rule of Professional Conduct (following the provision outlining terminology) imposes a mandatory duty on attorneys to provide competent representation to their clients. Rule of Professional Conduct 1.1.  Rule 1.1 breaks competent representation into four parts: “the legal knowledge, skill, thoroughness and preparation necessary for the representation.”  Lawyers are expected not only to be familiar with well-settled principles of law applicable to their clients’ needs, but Rule 1.1’s “interrelated obligations of thoroughness and preparation require a lawyer to investigate all relevant facts and research applicable law.” Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct 21, 25 (8th ed. ABA 2015).
           
When determining, for disciplinary purposes, whether an attorney’s conduct has violated Rule 1.1, the attorney’s representation as a whole must be considered. In re Brown, 04 CH 73 (Review Bd., Nov. 7, 2007) at 11, recommendation adopted, No. M.R. 22127 (March 17, 2008).  No intent is required in order to establish incompetence (see In re Slaughter, 97 CH 82 (Review Bd., Nov. 9, 1999) at 4-5, approved and confirmed, No. M.R. 16460 (March 22, 2000)), and inexperience in an area of law is not a defense to a charge of incompetence. Annotated Model Rules of Professional Conduct at 27-28. An attorney who has little experience or knowledge in an area of law can undertake study to become competent to represent a client in that area, but the attorney cannot charge the client an attorney’s fee for the time spent gaining that general education. Annotated Model Rules of Professional Conduct at 28. 

Competent representation does not mean error-free representation, nor does incompetence equate with legal malpractice. The Illinois Supreme Court considered the interplay between incompetence and legal malpractice in In re Mason, 122 Ill. 2d 163 (1988). There, an attorney agreed to represent a client who had been injured while riding a Chicago Transit Authority bus. The attorney failed to file a timely notice of claim with the CTA, which was a precondition to filing a lawsuit. The Court noted that the attorney had made a mistake that cost his client his cause of action, but it declined to label that mistake incompetence in the disciplinary sense. It emphasized that the attorney was young and inexperienced; that the attorney had generally been investigating and pursuing the claim; and that the notice requirement, unlike the statute of limitations, was not widely known. The Court concluded that, regardless of whether the attorney’s action might constitute legal malpractice, his isolated oversight could not be the subject of discipline. Mason, 122 Ill. 2d at 168-70. Similarly, the fact that an attorney has been found to have been constitutionally ineffective in criminal proceedings does not necessarily mean that the attorney is subject to discipline for incompetence. In re Washington, 99 CH 58 (Hearing Bd., Dec. 31, 2003) at 23-24, affirmed in part, (Review Bd., Oct. 27, 2004), recommendation adopted in part, No. M.R. 19844 (March 18, 2005). 

Incompetent representation was found based on a lack of legal knowledge and preparation in In re Grigsby, 00 SH 58 (Review Bd., Feb. 3, 2003), petition for leave to file exceptions as to sanction allowed, No. M.R. 18695 (May 22, 2003). In that case, the attorney was appointed to represent a defendant on death row in post-conviction proceedings after the defendant had filed a plainly deficient pro se post-conviction petition. The attorney did not investigate the claims made in that petition, interview possible witnesses, communicate adequately with the defendant, read the entire case record, amend the petition, or attach required exhibits and/or affidavits. As a result, the post-conviction petition was dismissed. The attorney filed a notice of appeal but then filed a five-page appellate brief that did not comply with relevant rules. The Illinois Supreme Court struck the brief on the State’s motion and ultimately appointed different counsel. The attorney did not know, and did not endeavor to find out, the requirements for representing capital defendants in post-conviction proceedings. In its opinion in the defendant’s post-conviction appeal, the Illinois Supreme Court described the attorney’s actions as “a total failure of representation” and as representation “in name only.”  People v. Turner, 187 Ill. 2d 404, 415 (1999). 

Incompetence based on a lack of skill and thoroughness was found in In re Gonzalez, 2015PR00133 (Hearing Bd., July 11, 2017), affirmed in part, (Review Bd., Feb. 23, 2018), petition for leave to file exceptions as to sanction allowed, No. M.R. 029325 (May 24, 2018).  The attorney in that case was hired by a woman who needed to obtain title to a home that was held in a land trust. After consulting Google and charging the client $4,000, the attorney drafted and recorded a bill of sale to transfer the property, figuring that the beneficial interest in a land trust is personal property and that bills of sale are used to transfer personal property. The attorney should have drafted a direction to convey directing the land trust’s trustee to prepare a trustee’s deed to transfer the interest in the property. The bill of sale was ineffective. Reasonable investigation and research by the attorney would have revealed the correct way to transfer the property. 

As can be seen from the Mason, Grigsby, and Gonzalez cases, an attorney’s incompetence must be significant in character to warrant a disciplinary sanction. Owing in part to that threshold, incompetence generally is not a common charge of misconduct in Illinois. Of the 73 formal disciplinary complaints filed before the ARDC’s Hearing Board in 2017, only one alleged incompetence. Five of the 79 disciplinary complaints filed in 2016 alleged incompetence, while six of the 81 disciplinary complaints filed in 2015 alleged incompetence. 

Another reason that incompetence is not a prevalent disciplinary charge is that an attorney’s lack of competence may lead to other, arguably more serious, misconduct like neglect of a client matter, which will itself subject the attorney to discipline. In the Mason case, for example, when the young attorney discovered that he had not provided timely notice to the CTA of his client’s injury, he falsely told his client that the case had settled and paid his client a “settlement” from his own funds. The attorney was disciplined for engaging in that dishonest activity. 

The vast majority of attorneys in Illinois competently represent their clients, either because they are experienced in the areas in which they practice, or because they undertake to gain competency through study and/or communication with more experienced lawyers. In the occasional situation where an attorney does not know how to serve a client’s needs and does not educate him- or herself, with the result that the client is prejudiced, Rule of Professional Conduct 1.1 provides a basis to discipline the attorney and thereby protect the public.