Ethical Limitations on the Attorney “Overachiever”
As an attorney seeking to advance your career, whether within a firm or within the legal community at large, you may feel the “overachiever” instinct to immediately accept any new assignments, cases, or opportunities within industry organizations. Taking on such additional commitments can be an effective means for motivated attorneys to set themselves apart. While “keeping your nose to the grindstone,” “burning the midnight oil,” or any other hardworking adage of your choice is arguably an occupational hazard of the legal profession, attorneys must remain mindful of their professional obligations and ethical limitations on stretching themselves too thin.
Impairments that impede a lawyer’s fitness to competently and diligently engage in the practice of law can be temporary or permanent, can vary in severity, and can result from a broad range of potential causes, such as disease or illness that impacts mental faculties, such as mental illness, depression, anxiety or dementia; stress; lack of sleep; alcoholism; problematic substance use; or traumatic life events. (See State Bar of Cal. Comm. On Prof. Resp. and Conduct, Formal Op. No. 2021-206, p. 3.)
California Rules of Professional Conduct [CRPC], rule 1.1 directs, “A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” (CRPC, rule 1.1(a).) “For purposes of this rule, ‘competence’ in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.” (CRPC, rule 1.1(b) [emphasis added].)[1] By specifically including a mental, emotional, and physical component, this rule makes clear that an attorney who has the requisite learning and skill to perform the legal services at issue may nonetheless violate the duty of competence if time limitations, stress, lack of sleep, or other impairments preclude the attorney from performing competently.
Under CRPC, rule 1.3, “A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.” (CRPC, rule 1.3(a).) “For purposes of this rule, “reasonable diligence” shall mean that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.” (CRPC, rule 1.3(b) [emphasis added]; see also Stevens v. State Bar (1990) 51 Cal.3d 283, 290 [“client neglect is a serious form of misconduct which warrants substantial discipline”].) Where an overloaded schedule or workload prevents an attorney from timely acting to further a client’s interests, a violation of the duty of diligence may result.
In addition, any such delays in attending to a client’s matter similarly raise concerns about potential violations of CRPC, rule 1.4(a)(3) and Business and Professions Code section 6068(m), which require attorneys to keep their clients reasonably informed about significant developments relating to the representation.
“A heavy caseload does not generally excuse or mitigate an attorney’s failure to perform diligently and competently.” (State Bar of Cal. Comm. On Prof. Resp. and Conduct, Formal Op. No. 2021-206, p. 5, fn. 8, citing Blair v. State Bar (1989) 49 Cal.3d 762, 780, Carter v. State Bar (1988) 44 Cal.3d 1091, 1101 [“[O]ffice workload and scheduling problems do not generally serve to substantially mitigate misconduct.”], ABA Model Rule 1.3, Comment [2] [“A lawyer’s workload must be controlled so that each matter can be handled competently.”].)
An impaired lawyer has the same ethical obligations as other lawyers. (ABA Formal Opn. No. 03-429 at p. 2.)[2] “A lawyer’s mental impairment may, however, prevent or inhibit a lawyer from recognizing and/or appreciating the existence or extent of the impairment and its effect on the lawyer’s performance of legal services.” (State Bar of Cal. Comm. On Prof. Resp. and Conduct, Formal Op. No. 2021-206, p. 4.)
Whether an attorney has acted diligently and competently will depend on the facts and circumstances of each case. To avoid a potential violation of the Rules of Professional Conduct, attorneys should be mindful of their ability to satisfy their professional obligations as to all current clients before agreeing to take on additional work or commitments.
[1] An asterisk (*) identifies a word or phrase defined in the terminology rule, CRPC, rule 1.0.1. For purposes of the CRPC, “‘Reasonable’ or ‘reasonably’ when used in relation to conduct by a lawyer means the conduct of a reasonably prudent and competent lawyer.” (CRPC, rule 1.0(h).)
[2] “Ethics opinions and rules and standard promulgated by other jurisdictions and bar associations may also be considered” for guidance on proper professional conduct. (CRPC, rule 1.0, Comment [4].)