Criminal Defense of Immigrants


§ 2.25 1. We Must Decline Representation if We Lack Necessary Learning

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First, if we lack the necessary learning and skill to represent a defendant in a particular case, we must (a) decline the representation, (b) associate another attorney with the necessary skill and learning, or (c) learn what is necessary if we have the time, resources, and ability to do so.[1]  The ABA Model Rules of Professional Conduct require counsel to have the legal knowledge and skill necessary to represent a client.[2]  Many states agree.[3]  In Texas, for example, except in an emergency: “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter . . . .”[4]  In California, the rules provide that a lawyer is competent only if s/he uses the diligence, learning and skill reasonably necessary to the representation.[5]  These rules do allow attorneys to take on matters for which they lack the necessary learning and skill, but only if they take the necessary remedial steps, i.e., associating or consulting with another attorney reasonably believed to be competent,[6] or acquiring sufficient learning and skill before performance is required.[7]  Similarly, the ABA Model Rules allow an attorney to achieve the requisite skill and knowledge for competence through the necessary study or by associating a lawyer of established competence.[8]

[1] E.g., California Rules of Professional Responsibility 3-110(c). 

[2] American Bar Association, Model Rules of Professional Conduct 1.1 (2002) (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).

[3] Jurisdictions with Rules Based on ABA Model Rule 1.1 include Arkansas, Arizona, Colorado, Connecticut, the District of Columbia, Florida, Illinois, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New Mexico, Ohio, Pennsylvania, Rhode Island, South Carolina, and Texas.  Jurisdictions with rules based on the ABA Model Code include Ohio, Oregon, and New York.

[4] Texas Disciplinary Rule of Professional Conduct 1.01(a). 

[5] California Rule of Professional Conduct 3-110(B). 

[6] See California Rule of Professional Conduct 3-110(C)(1).

[7] See California Rule of Professional Conduct 3-110(C)(2).

[8] ABA Model Rule 1.1, Comment [2].