Rule 1.1. Competence

« Rule 1.1. »

A lawyer shall provide competent representation to a client. Competent

representation requires the legal knowledge, skill, thoroughness and

preparation reasonably necessary for the representation.

COMMENT

[1] Legal knowledge and skill. — 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.

In many instances, the required proficiency is that of a general practitioner.

Expertise in a particular field of law may be required in some

circumstances.

[2] A lawyer need not necessarily have special training or prior

experience to handle legal problems of a type with which the lawyer is

unfamiliar. A newly admitted lawyer can be as competent as a practitioner

with long experience. Some important legal skills, such as the analysis of

precedent, the evaluation of evidence and legal drafting, are required in all

legal problems. Perhaps the most fundamental legal skill consists of

determining what kind of legal problems a situation may involve, a skill

that necessarily transcends any particular specialized knowledge. A lawyer

can provide adequate representation in a wholly novel field through

necessary study. Competent representation can also be provided through

the association of a lawyer of established competence in the field in

question.

[3] In an emergency a lawyer may give advice or assistance in a matter

in which the lawyer does not have the skill ordinarily required where

referral to or consultation or association with another lawyer would be

impractical. Even in an emergency, however, assistance should be limited

an also be provided through

the association of a lawyer of established competence in the field in

question.

[3] In an emergency a lawyer may give advice or assistance in a matter

in which the lawyer does not have the skill ordinarily required where

referral to or consultation or association with another lawyer would be

impractical. Even in an emergency, however, assistance should be limited

to that reasonably necessary in the circumstances, for ill-considered action

under emergency conditions can jeopardize the client’s interest.

[4] A lawyer may accept representation where the requisite level of

competence can be achieved by reasonable preparation. This applies as

well to a lawyer who is appointed as counsel for an unrepresented person.

See also Rule 6.2.

[5] Thoroughness and preparation. — Competent handling of a

particular matter includes inquiry into and analysis of the factual and legal

elements of the problem, and use of methods and procedures meeting the

standards of competent practitioners. It also includes adequate

preparation. The required attention and preparation are determined in part

by what is at stake; major litigation and complex transactions ordinarily

require more extensive treatment than matters of lesser complexity and

consequence. An agreement between the lawyer and the client regarding

the scope of the representation may limit the matters for which the lawyer

is responsible. See Rule 1.2(c).

[6] Retaining or contracting with other lawyers. — Before a lawyer

retains or contracts with other lawyers outside the lawyer’s own firm to

provide or assist in the provision of legal services to a client, the lawyer

should ordinarily obtain informed consent from the client and must

reasonably believe that the other lawyers’ services will contribute to the

competent and ethical representation of the client. See also Rules 1.2

(allocation of authority), 1.4 (communication with client), 1.5(e) (fee

sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law)

al services to a client, the lawyer

should ordinarily obtain informed consent from the client and must

reasonably believe that the other lawyers’ services will contribute to the

competent and ethical representation of the client. See also Rules 1.2

(allocation of authority), 1.4 (communication with client), 1.5(e) (fee

sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law).

The reasonableness of the decision to retain or contract with other lawyers

outside the lawyer’s own firm will depend upon the circumstances,

including the education, experience and reputation of the nonfirm lawyers;

the nature of the services assigned to the nonfirm lawyers; and the legal

protections, professional conduct rules, and ethical environments of the

jurisdictions in which the services will be performed, particularly relating

to confidential information.

[7] When lawyers from more than one law firm are providing legal

services to the client on a particular matter, the lawyers ordinarily should

consult with each other and the client about the scope of their respective

representations and the allocation of responsibility among them. See Rule

1.2. When making allocations of responsibility in a matter pending before

a tribunal, lawyers and parties may have additional obligations that are a

matter of law beyond the scope of these Rules.

[8] Maintaining competence. — To maintain the requisite knowledge

and skill, a lawyer should keep abreast of changes in the law and its

practice, including the benefits and risks associated with relevant

technology, engage in continuing study and education and comply with all

continuing legal education requirements to which the lawyer is subject.

NOTES TO DECISIONS

he scope of these Rules.

[8] Maintaining competence. — To maintain the requisite knowledge

and skill, a lawyer should keep abreast of changes in the law and its

practice, including the benefits and risks associated with relevant

technology, engage in continuing study and education and comply with all

continuing legal education requirements to which the lawyer is subject.

NOTES TO DECISIONS

Client relations.

— Conflicts of interest.

— Effective representation.

Professional conduct.

— Candor toward the tribunal.

Sanctions.

— Reprimand.

— Suspension.

Client relations.

— Conflicts of interest.

Analysis

Attorney failed to provide competent representation where the attorney

failed to check files to determine if a conflict of interest existed as a result

of the attorney’s representation of the client’s ex-spouse against the client

in a former proceeding involving the same issues. In re Mekler, 689 A.2d

1171 (Del. 1996).

Attorney was suspended from the practice of law for 3 months, followed

by a 1-year period of probation, for violating Law. R. Prof. Conduct 1.1,

1.4(b), 1.7, and 1.16(a) (Interpretative Guideline Re: Residential real estate

transactions); the attorney failed to obtain the clients’ consent to a conflict

of interest that arose when the attorney represented both the

borrower and the lender in a loan transaction, and failed to inform the

clients of their 3-day right to rescind. In re Katz, 981 A.2d 1133 (Del.

2009).

Where an attorney committed violations of Law. R. Prof. Conduct 1.1,

1.4(b), and 1.16 during the course of 10 closings for a private money

lender, a public reprimand was deemed the appropriate sanction; the

attorney had ethical duties to disclose to the borrowers a conflict of interest

and the fact that the loan documents were inadequate, even though the

attorney did not represent them, as they had no attorneys. In re Goldstein,

990 A.2d 404 (Del. 2010).

— Effective representation

g the course of 10 closings for a private money

lender, a public reprimand was deemed the appropriate sanction; the

attorney had ethical duties to disclose to the borrowers a conflict of interest

and the fact that the loan documents were inadequate, even though the

attorney did not represent them, as they had no attorneys. In re Goldstein,

990 A.2d 404 (Del. 2010).

— Effective representation.

Failure to promptly comply with court rules, even after notification

from the court, is a violation of this Rule. In re Tos, 576 A.2d 607 (Del.

1990).

Failure to file an opening brief on behalf of a client, resulting in the

dismissal of the client’s appeal, was a violation of this rule. In re Sullivan,

727 A.2d 832 (Del. 1999).

Attorney violated this rule by failing to provide competent

representation to client where attorney had the requisite legal knowledge

and skills but did not exercise the thoroughness and preparation reasonably

necessary to properly represent client in bankruptcy action. In re Benge,

754 A.2d 871 (Del. 2000).

Lawyer who violated numerous professional duties in real estate

practice, and caused over $ 500,000 in damages to clients, was disbarred.

In re Spiller, 788 A.2d 114 (Del. 2001).

Finding that attorney violated Law. R. Prof. Conduct 1.1 was warranted

where the attorney failed to probate the estate in a timely manner. In re

Wilson, 900 A.2d 102 (Del. 2006).

Attorney violated Law. R. Prof. Conduct 1.1 by: (1) failing to conduct an

adequate investigation; and (2) failing to prepare and file a motion for

reduction of sentence upon which a Superior Court might have relied to

reduce the client’s sentence. In re Pankowski, 947 A.2d 1122 (Del. 2007).

the attorney failed to probate the estate in a timely manner. In re

Wilson, 900 A.2d 102 (Del. 2006).

Attorney violated Law. R. Prof. Conduct 1.1 by: (1) failing to conduct an

adequate investigation; and (2) failing to prepare and file a motion for

reduction of sentence upon which a Superior Court might have relied to

reduce the client’s sentence. In re Pankowski, 947 A.2d 1122 (Del. 2007).

Attorney whose multiple federal actions for assorted clients were

dismissed due to failure to respond to dismissal or summary judgment

motions violated Law. R. Prof. Conduct 1.1, 1.3, 1.4, 1.5, and 8.4,

warranting a 2-year suspension from the practice of law, with conditions

where: (1) the attorney had an unblemished record; (2) the attorney had

undergone 2 eye surgeries; (3) the attorney had suffered the loss of a half-

sibling; but (4) the conduct was deemed “knowing” and evidenced

engagement in a pattern of misconduct. In re Feuerhake, 998 A.2d 850

(Del. 2010).

Where an attorney engaged in lateness or failure to appear at scheduled

court appearances, tardy requests for postponements, failure to comply

with court-imposed deadlines, “sloppy work and complete disregard to the

Court’s rules and procedure” and wasted judicial resources in 3 Delaware

Courts, in addition to violating the duty of candor to the Supreme Court of

Delaware, the attorney violated Law Prof. Conduct R. 1.1, 1.3, 3.3, 3.4 and

8.4. In re: Poliquin, 49 A.3d 1115 (Del. 2012).

Attorney did not violate Law. Prof. Conduct R. 1.1 by failing to take

time to explain various forms of joint ownership available and their legal

implications or by failing to attend a settlement. In re Sisk, 54 A.3d 257

(Del. 2012).

Lawyer violated Law. Prof. Conduct R. 1.1 because the lawyer did not

file a complaint or secure a tolling agreement to preserve the statute of

limitations. In re Wilks, 99 A.3d 228 (Del. 2014).

Professional conduct.

— Candor toward the tribunal

n various forms of joint ownership available and their legal

implications or by failing to attend a settlement. In re Sisk, 54 A.3d 257

(Del. 2012).

Lawyer violated Law. Prof. Conduct R. 1.1 because the lawyer did not

file a complaint or secure a tolling agreement to preserve the statute of

limitations. In re Wilks, 99 A.3d 228 (Del. 2014).

Professional conduct.

— Candor toward the tribunal.

Attorney’s misrepresentation to a Family Court that a client was not in

arrears with regard to alimony and had paid the debt in full was

determined to have been an act of dishonesty, fraud, deceit, or

misrepresentation in violation of Law. Prof. Conduct R. 8.4(c) and (d), a

failure to provide competent representation to the client, in violation of

Law. Prof. Conduct R. 1.1, and a failure to explain a matter to the extent

reasonably necessary to permit the client to make informed decisions, in

violation of Law. Prof. Conduct R. 1.4(b); the misrepresentation was found

to have been knowingly made, but the recommended suspension of 2 years

was reduced to 6 months, because mitigating circumstances were found in

the

nature

of the

attorney

providing

the

Family

Court with

correspondence, which would have permitted the Family Court and the

adverse party an opportunity to verify the debt. In re Chasanov, 869 A.2d

327 (Del. 2005).

Sanctions.

— Reprimand.

Because an attorney neglected client’s matters, failed to promptly

disburse client funds, and failed to cooperate with disciplinary authorities,

the attorney violated Law. R. Prof. Conduct 1.1, 1.3, 1.4(a)(3), (4), 1.15(d),

and 8.1(b); accordingly, the attorney was publicly reprimanded and placed

on probation for 18 months with the imposition of certain conditions. In re

Member of the Bar of the Supreme Court of Del., 999 A.2d 853 (Del.

2010).

Attorney was publicly reprimanded and placed on conditional probation

for violating Law. Prof. Conduct R

violated Law. R. Prof. Conduct 1.1, 1.3, 1.4(a)(3), (4), 1.15(d),

and 8.1(b); accordingly, the attorney was publicly reprimanded and placed

on probation for 18 months with the imposition of certain conditions. In re

Member of the Bar of the Supreme Court of Del., 999 A.2d 853 (Del.

2010).

Attorney was publicly reprimanded and placed on conditional probation

for violating Law. Prof. Conduct R. 1.1, 1.3, 1.4(a)(3), (4), 1.15(b), and

8.1(b) where the attorney: (1) failed to timely distribute settlement funds;

(2) failed to communicate with a personal injury client; and (3) failed to

keep the Office of Disciplinary Counsel informed of changes. In re Siegel,

47 A.3d 523 (Del. 2012).

— Suspension.

Attorney, who was on probation for previous violations of the Rules of

Professional Conduct and who violated Law. Prof. Conduct R. 1.1, 1.2(a),

1.4(a), 1.15(a), 8.1, 8.1(b), 8.4(c), and 8.4(d), and Law. Disc. P. R. 7(c),

was suspended from the practice of law in Delaware for 3 years after the

Board on Professional Responsibility found that the attorney’s problems

appeared to be getting worse and included: co-mingling client trust funds;

inadequate bookkeeping and safeguarding of client funds; inadequate

maintenance of books and records; knowingly making false statements of

material fact to the ODC; false representations in Certificates of

Compliance for 3 years; and failure to file corporate tax returns for 3

years. In re Becker, 947 A.2d 1120 (Del. 2008).

Suspension for 6 months and 1 day was warranted where an attorney:

inadequate bookkeeping and safeguarding of client funds; inadequate

maintenance of books and records; knowingly making false statements of

material fact to the ODC; false representations in Certificates of

Compliance for 3 years; and failure to file corporate tax returns for 3

years. In re Becker, 947 A.2d 1120 (Del. 2008).

Suspension for 6 months and 1 day was warranted where an attorney:

(1) violated Law Prof. Conduct R. 1.1, 1.3, 3.3, 3.4 and 8.4; (2) had a

record of 2 prior private admonitions; (3) engaged in a pattern of

misconduct consisting of multiple offenses; (4) suffered from personal or

emotional problems; (5) cooperated with the Office of Disciplinary

Counsel in connection with the hearing; (6) was generally of good

character, as evidenced by willingness to represent those who might not

otherwise have had representation; and (7) exhibited remorse. In re:

Poliquin, 49 A.3d 1115 (Del. 2012).

Attorney who committed numerous ethical violations, including

neglecting multiple client matters, making misrepresentations to the court

and failing to properly safeguard clients’ funds, was suspended for 18

months, based on a determination that the mitigating factors significantly

outweighed the aggravating factors. In re Carucci, 132 A.3d 1161 (Del.

2016).

Del. Rules of Prof'l Conduct Rule 1.2