f/k/a archives . . . real opinions & real haiku

July 19, 2003

“Diligent Defender” Standards Should Apply to All Law Firms

Filed under: pre-06-2006 — David Giacalone @ 4:05 pm

In ACCD Ethics Opinion 03-01, the American Council of Chief Defenders proclaimed in April that Chief Defenders are ethically required to refuse to accept more cases than their agency can competently handle. As explained in a press release from the National Legal Aid and Defender Association, dated April 14, 2003, after “a comprehensive review of nationwide professional ethical requirements and court rulings,” ACCD declared:

  • A chief public defender is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case, and
  • Individual attorneys on public defender staffs are also required to refuse additional assignments that would prevent them from providing such competent, diligent quality representation in all their cases.

ethicalEsq believes that private attorneys and law firms should have — more accurately, do havesimilar obligations to refuse to accept new clients when it is unlikely that the client will be provided services that are diligent (attentive, prompt) and competent (thorough, knowledgeable, well-prepared).  To have a lower standard, is unfair to the new client and current clients. The Model Rules of Conduct currently state:

Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

(Click here to compare the diligence requirements across jurisdictions; and click here to compare the competence requirements across jurisdictions.)

Lawyers, how often have you heard yourself or opposing counsel ask for lengthy adjournments that are contrary to the client’s interests, because of an overload of work?  A solo practitioner in one case I handled a few years ago told the judge that a brief custody trial needed to be postponed a couple of months (into September, despite the parties living in different school districts) because she “had more work than 4 or 5 lawyers could handle.” [She’s a judge now.]   How often has your work or preparation been less than thorough because you simply were handling too many matters?  Our clients deserve better — even if it means accumulating fewer billable hours and less income. Sorry, those are the rules.  If you don’t think so, please explain to your clients why not.  Let us know, too.

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