Code of Professional Conduct

CHAPTER II.  COMPETENCE AND QUALITY OF SERVICE

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RULE

(a) The lawyer owes the client a duty to be competent to perform any legal services undertaken on the client's behalf.¹

(b) The lawyer should serve the client in a conscientious, diligent and efficient manner so as to provide a quality of service at least equal to that which lawyers generally would expect of a competent lawyer in a like situation.²

Commentary

Knowledge and Skill

1. Competence in the context of the first branch of this Rule goes beyond formal qualification to practice law.  It has to do with the sufficiency of the lawyer's qualifications to deal with the matter in question. It includes knowledge, skill, and the ability to use them effectively in the interests of the client.³

2. As members of the legal profession, lawyers hold themselves out as being knowledgeable, skilled and capable in the practice of law.  The client is entitled to assume that the lawyer has the ability and capacity to deal adequately with any legal matters undertaken on the client's behalf.⁴

3. The lawyer should not undertake a matter without honestly feeling either competent to handle it, or able to become competent without undue delay, risk or expense to the client. The lawyer who proceeds on any other basis is not being honest with the client.  This is an ethical consideration and is to be distinguished from the standard of care that a court would apply for purposes of determining negligence.

4. Competence involves more than an understanding of legal principles: it involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied.  To accomplish this the lawyer should keep abreast of developments in all branches of law wherein the lawyer's practice lies.

5. In deciding whether the lawyer has employed the requisite degree of knowledge and skill in a particular matter, relevant factors will include the 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 appropriate or feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.  In some circumstances expertise in a particular field of law may be required; often the necessary degree of proficiency will be that of the general practitioner.

Seeking Assistance

6. The lawyer must be alert to recognize any lack of competence for a particular task and the disservice that would be done the client by undertaking that task. If consulted in such circumstances, the lawyer should either decline to act or obtain the client's instructions to retain, consult or collaborate with a lawyer who is competent in that field.  The lawyer should also recognize that competence for a particular task may sometimes require seeking advice from or collaborating with experts in scientific, accounting or other non-legal fields. In such a situation the lawyer should not hesitate to seek the client's instructions to consult experts.

Quality of Service

7. Numerous examples could be given of conduct that does not meet the quality of service required by the second branch of the Rule. The list that follows is illustrative, but not by any means exhaustive:

(a) failure to keep the client reasonably informed;
(b) failure to answer reasonable requests from the client for information;
(c) unexplained failure to respond to the client's telephone calls;
(d) failure to keep appointments with clients without explanation or apology;
(e) informing the client that something will happen or that some step will be taken by a certain date, then letting the date pass without follow-up information or explanation;
(f) failure to answer within a reasonable time a communication that requires a reply;
(g) doing the work in hand but doing it so belatedly that its value to the client is diminished or lost;
(h) slipshod work, such as mistakes or omissions in statements or documents prepared on behalf of the client;
(i) failure to maintain office staff and facilities adequate to the lawyer's practice;
(j) failure to inform the client of proposals of settlement, or to explain them properly;
(k) withholding information from the client or misleading the client about the position of a matter in order to cover up the fact of neglect or mistakes;
(l) failure to make a prompt and complete report when the work is finished or, if a final report cannot be made, failure to make an interim report where one might reasonably be expected;
(m) self-induced disability, for example from the use of intoxicants or drugs, which interferes with or prejudices the lawyer's services to the client; ⁵
(n) failure to maintain an adequate limitation reminder or tickler system to ensure an effective follow-up procedure with respect to the lawyer's files.

[Chapter II Commentary 7(n) added February 4 & 5, 1993]

Promptness

8. The requirement of conscientious, diligent and efficient service means that the lawyer must make every effort to provide prompt service to the client. If the lawyer can reasonably foresee undue delay in providing advice or services, the client should be so informed. ⁶

Consequences of Incompetence

9. It will be observed that the Rule does not prescribe a standard of perfection.  A mistake, even though it might be actionable for damages in negligence, would not necessarily constitute a failure to maintain the standard set by the Rule, but evidence of gross neglect in a particular matter or a pattern of neglect or mistakes in different matters may be evidence of such a failure regardless of tort liability.  Where both negligence and incompetence are established, while damages may be awarded for the former, the latter can give rise to the additional sanction of disciplinary action. ⁷

10. The lawyer who is incompetent does the client a disservice, brings discredit to the profession, and may bring the administration of justice into disrepute.⁸   As well as damaging the lawyer's own reputation and practice, incompetence may also injure the lawyer's associates or dependants.

NOTES

1. Cf. CBA-COD 2; IBA B-1; ABA-MR 1.1; ABA Canon 6, ECs 6-1 to 6-5, DR 6-101 (a).

   "The public looks for a hallmark bestowed by a trusted professional body, and evidenced by entry on a register or members' list (p. 36)...Having bestowed a hallmark of competence, a professional institute has some responsibility for ensuring that it remains valid.", Bennion, p. 48.

   See also Bastedo, A Note on Lawyers' Malpractice, (1970) 7 Osg. Hall L.J. 311.  (Return to Rule (a))

2. While historically English and Canadian courts held that actions against lawyers for breach of duty were in contract or fiduciary obligation, there has developed an alternative negligence basis for liability: see, Groom v. Crocker (1939) 1 K.B. 194, (1938) 2 All E.R. 394 (C.A.); Nocton v. Lord Ashburton (1914) A.C. 932, 83 LJ Ch 784 (H.L.); Central Trust Co. v. Rafuse et al. (1986) 2 S.C.R. 147, 31 D.L.R. (4th) 481.  (Return to Rule (b))
   
   
3. "Incompetence goes wider than lack of professional skill, and covers delay, neglect and even sheer disobedience to the client's instructions.", Bennion, p. 53.  (Return to Commentary 1)
   
   
4. "This solicitor's very presence as a lawyer...is an assurance to the public that he has the training, the talent and the diligence to advise them abut their legal rights and competently to aid in their enforcement. Having regard to the faith which a citizen ought to be able to place in a member of the Law Society...", per Porter, J.A. in Cook v. Szott et al. (1968), 68 D.L.R. (2d) 723 at 726 (Alta. App. Div.).  (Return to Commentary 2)
   
   
5. Cf. Orkin, pp. 123-25, and para. 9, post.

   "A client has a right to honest explanations for delay on the part of his solicitor, and it is clear that the Benchers...concluded that the solicitor had not given an honest explanation for the delay, but on the contrary had deceived his client as to the reason for such delay...", per Farris, C.J.S.C. in Re Legal Professions Act; Sandverg v. "F" (1945), 4 D.L.R. 446 at 447 (B.C. Visitorial Tribunal). Cf. IBA-D1. The Legal Profession Act, 1990 provides that "conduct unbecoming" includes the practice of law in an incompetent manner (Section 2(1)(d)) and further allows the Law Society to apply to the court for the appointment of a trustee to manage the practice of a member who, inter alia, is unable for any reason to practice as a lawyer (Section 61).  (Return to Commentary 7)

   [Chapter II Footnote 5 Amended December 11, 1992]

6. For a denunciation of dilatory practices of solicitors, see Allen v. McAlpine et al. (1968), 2 W.L.R. 366 (C.A.).  (Return to Commentary 8)
   
   
7. "I take the law as to the standard of care of a solicitor to be accurately stated in Charlesworth on Negligence...it must be shown that the error or ignorance was such that an ordinary competent solicitor would not have made or shown it", per Lebel, J. in Aaroe & Aaroe v. Seymour (1957), 6 D.L.R. (2d) 100 at 101 (Ont. H.C.J.).

   "As a future guide to Benchers [this Visitorial Tribunal] expresses the opinion that the words 'good cause' in the Legal Professions Act are broad enough...to justify the Benchers in suspending a member...who has been guilty of a series of acts of gross negligence which, taken together, would amount to a course of conduct sufficient to bring the legal profession into disrepute", per Farris, C.J.S.C. in Re Legal Professions Act; Baron v. "F" (1945), 4 D.L.R. 525 at 528 (B.C. Visitorial Tribunal).  (Return to Commentary 9)

8. For an instance of "inordinate and inexcusable delay" see Tiesmaki v. Wilson (1972), 23 D.L.R. (3d) 179 per Johnson, J.A. at 182 (Alta. App. Div.).  (Return to Commentary 10)

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