Rule 1.1: In the Beginning…
By Dan Murdock, OBA General Counsel

I guess that it is not surprising that the very first rule of professional conduct concerns the competence of the lawyer. The rule consists of two sentences, 24 words, and discusses competent representation and what competent representation requires of a lawyer. Not many words but very important ones.

Rule 1.1 advises that competent representation involves four factors: legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Further, the Comment to Rule 1.1 goes into much greater detail and offers greater guidance to the practitioner with respect to those four factors.

How often do we find ourselves in the middle of litigation wondering how did we get in this mess, and more importantly, how are we doing to get out of it. The time to ask that question has long since past. Examine the case at the very beginning. Review the nature of the case, its complexities and any possible financial requirements that it might have. Explore your own competence. Have I handled something like this before? Do I have the time necessary to undertake the representation? Am I mentally and emotionally ready to complete the task at hand?

If there are reservations about accepting employment, consider declining the case. You may also want to consider referring the case to a lawyer who does not have those reservations or reach an agreement with that same lawyer to act as co-counsel. If you are worried about the fee issue, review Rule 1.5(e) which allows lawyers who are not members of the same firm to divide the fee. If you are worried about losing a client to the referred lawyer, maintain a presence in the case.

Communicate with the client by both telephone and written correspondence. Stay involved if only on a minimal basis. Clients like to have their hands held. Maybe they have known you for a long time, respect your opinion and only feel comfortable if you approve the handling of the case by the other lawyer. If you decide to proceed on, remember Rule 1.1 and the comments.

I always have a tendency to try to simplify everything. Like in grade school, I try to reduce to the lowest common denominator. That tendency can be an asset but I also recognize it as a fault as well. I always remember a CLE program by David Petty, a former OBA president from Guymon. David talked about the “Three Ps — Plan, Prepare and Perform.” On the issue of competence, I offer my oversimplified version of Rule 1.1 and a different variation of David’s CLE.

I also recognize four factors in the competent representation but express those factors in the following (hopefully more meaningful) way:

1. Know what you are doing;
2. Know how to do it;
3. Prepare to do it;
4. Do it.

Sixteen words but merely words. Let us remember that our words must have meaning. Let us remember that our acts define who we are and our competence as a member of the bar.