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Ethics


diligence and communication rules, the day-to-day practice of law requires constant vigilance to maintain compliance. Rule 1.1 expounds upon the competent representation


imperative with the specific requirements that a lawyer must possess and act with “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” As mentioned in Comment 1 to Rule 1.1, relevant factors to consider in determining whether a lawyer possesses the requisite knowledge and skill to handle a particular matter “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.” A lawyer who concentrates his practice in a single area of personal injury representation such as motor torts may have the legal knowledge and skill to handle most routine cases, but should exercise caution in taking on a particularly complex matter or one presenting a novel issue unless he is able to devote the necessary time and study to achieve the requisite level of competence for that case. Even when an attorney has sufficient knowledge and skill


to represent a client in a particular matter, he may violate the competence rule by failing to apply the requisite thoroughness and/or preparation in carrying out the representation.


In


Attorney Grievance Commission v. Harris, 366 Md. 376 (2001), the Court of Appeals overrode the hearing judge’s conclusion that the respondent attorney had not violated Rule 1.1 because he possessed extensive knowledge and experience in handling automobile negligence cases and was familiar with the type of injury, and the impact thereof, sustained by his clients in two matters at issue. In sustaining an exception filed by Bar Counsel, the Court of Appeals noted the respondent’s failure to appear at a Rule 2-507 hearing in one matter and at the client’s trial in a second matter and stated that competent representation “necessarily includes, at a minimum, the attorney’s presence at any court proceeding for which he or she was retained, absent an acceptable explanation for that attorney’s absence.” 366 Md. at 403. Quoting from a prior disciplinary opinion, the Court added that “a complete failure of representation is the ultimate incompetency.” Id. Rule 1.3, which requires reasonable diligence and


promptness in representing a client, often overlaps with the thoroughness and preparation requirements of competent representation. For example, an attorney’s failure to attend a scheduled court hearing, as in Harris, may violate both Rules 1.1 and 1.3. In Attorney Grievance Commission v. De La Paz, 418 Md. 534 (2011), the Court of Appeals disbarred an attorney who violated both rules (as well as several others) by wholly


JUDGE ROBERT N. DUGAN (Ret.)


Former Associate Judge,


Circuit Court for Baltimore County


Now Available for:


Arbitration, Mediation, Guided Settlement Discussions, and Case Evaluations


(410) 247-9372 Trial Reporter / Winter 2012 15


neglecting two clients’ cases. In one matter, the respondent was retained and paid to represent a client named as a defendant in a civil action, yet he never entered his appearance in the case and ultimately did not appear for a hearing, leaving the client to enter into a consent judgment without the assistance of counsel. Te second client matter at issue in De La Paz was a personal injury case for which the respondent filed a District Court civil complaint. After doing so, he discovered that the named defendant had passed away. Respondent De La Paz subsequently failed to open an estate or otherwise act to protect the client’s claim, ultimately resulting in the District Court’s dismissal of the action for failure to prosecute. Te Court of Appeals recognized that the respondent’s utter failure to represent both clients violated Rules 1.1 and 1.3. While Harris and De La Paz present extreme examples


of lack of competence and diligence, Comment 2 to Rule 1.3 offers this valuable insight into the linkage between the two rules:


“A lawyer’s workload must be controlled so that each


matter can be handled competently.” In order to protect against possible competence and/or diligence violations, a lawyer is responsible for recognizing the extent of how many cases he is capable of handling at any given time and being able to manage his time effectively. Many variables enter into this equation,


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