[ATTORNEY DISCIPLINE]

ETHICS BYTE:
Competency rule violation is 1-2 punch

by DIANE KARPMAN


Violation of the attorney competency requirement, rule 3-110, is like a one-two punch. It can result in discipline and civil liability for malpractice. The rule inferentially mandates competency by prohibiting lawyers from “intentionally, recklessly, or repeatedly” failing to perform competently.

Historically, the majority of disciplinary cases maintained that simple negligence, absent some other factors, was not a sufficient basis for the imposition of discipline. “The good faith of an attorney is a matter to be considered in determining whether discipline should be imposed for acts done through ignorance or mistake.” Call v. State Bar (1955) 45 Cal.2d 104. Lawyers are often surprised to learn that the standard of representation is the same whether the work is performed pro bono or for a fee.

Simple negligence typically involves standard of care issues such as failing to file timely or failure to appear due to a calendaring mistake. These types of cases involve human error, an innocent lack of attention, or momentary inadvertence.

This rule encompasses negligent office procedures and the expansive duty of supervision, including staff and/or associate lawyers. In Gadda v. State Bar (1990) 50 Cal.3d 344, the Supreme Court stated that a senior lawyer could not relinquish responsibility for a client’s case “simply by punting the file downfield to whoever catches it.” In that case, it happened to be an inexperienced junior associate.

The State Bar’s chief trial counsel will investigate simple negligence to determine the existence of any other wrongdoing, which could constitute gross negligence or reckless disregard for the client’s best interests. Where the facts demonstrate a violation of the standard of conduct or a breach of fiduciary duty, such as misrepresentation of the facts or a cover-up of professional negligence, they will seek to impose discipline.

One method used to distinguish between simple negligence and gross negligence is by evaluating the impact of the harm upon the clients’ expectations. The disappointment engendered when clients are informed that their lawyer “blew” a statute of limitations is vastly different from the feeling of betrayal when clients realize that their fiduciary and champion misrepresented facts, violating the duty of honesty. This is the reason that punitive damages can be awarded for breach of fiduciary duty or constructive fraud (i.e., gross negligence at the State Bar).

Mistakes are the reason for errors and omissions coverage, i.e., if an error occurs, we can ameliorate the harm to the client with damages. Although not condoned, sometimes files really do fall into cracks. To paraphrase a quotation attributed to Clarence Darrow, mistakes are the reason that there are erasers on the ends of pencils. They happen. If you make a mistake, own up to it and deal with the problem.

. . . 

On the subject of mistakes, an error in the last “Ethics Byte” mistakenly identified the third-party payor rule as 3-310(E) instead of 3-310(F).


Diane Karpman represents attorneys before the State Bar.

[CALBAR JOURNAL]