The Attorney’s Duty to Maintain Learning and Skill
As we discussed in last week’s Malpractice Monday post, California attorneys have an obligation to represent clients with an appropriate level of learning and skill.
ATTORNEYS MUST MAINTAIN APPROPRIATE LEARNING AND SKILL
Attorneys must do more than merely acquire skills, however. In California (and also most other states) an attorney has a duty to maintain an appropriate level of learning and skill throughout his or her entire career. This can be accomplished through formal education, independent study, working with other (usually more experienced) counsel, or any other legally-permitted method designed to ensure that the attorney obtains and maintains proficiency in relevant practice areas.
MCLE – MANDATORY CONTINUING LEGAL EDUCATION
California attorneys also must complete a specified number of hours of mandatory continuing legal education (sometimes called “MCLE”) in every year that the attorney remains an active member of the California Bar. This requirement is set forth in California Business & Professions Code Section 6070.
Certain attorneys, such as full-time law professors, are exempt from the MCLE requirement. However, most attorneys must perform MCLE and report their compliance to the Bar Association. Attorneys must report compliance every three years, and can perform the required hours at any time during that three-year compliance period.
Simply performing mandatory MCLE is not enough to maintain learning and skill, however. MCLE requirements relate to general principles of legal practice, and contain very few topic area mandates. Attorneys may elect what kind of MCLE courses to take, and need not necessarily take courses in their designated practice areas to meet the mandatory hours.
MAINTAINING PROFICIENCY GOES BEYOND MINIMUM MCLE REQUIREMENTS
For this reason, attorneys must also take responsibility for keeping their knowledge and proficiency current in their chosen practice areas. Some attorneys handle this by taking targeted classes (including MCLEs). Some attorneys subscribe to targeted legal and professional journals, or keep up to date with practice manuals and books detailing laws, legal changes, and forms in their practice areas.
Maintaining learning and skill also requires attorneys to keep up with changes in the law. A competent attorney should spend an appropriate amount of time reading and researching changes in law and practice outside of time spent representing clients. While it’s appropriate to bill clients for time spent working on a client’s case–and that often includes researching the client’s issues–the attorney must also spend non-billable time maintaining a working knowledge of relevant laws.
ATTORNEYS DO NOT HAVE TO MEMORIZE ALL OF THE RELEVANT LAWS
Does this mean an attorney should be expected to memorize and remember all the laws that might be applicable to a client’s situation? Not at all. California has many laws, established both through statutes and through case-law precedents. No attorney could possibly memorize them all, or even memorize all the laws applicable to a single branch of practice.
Attorneys will often need to perform research on a client’s behalf, and it’s both appropriate and normal to bill the client for some or all of that research. However, billable research should be reasonably related to the client’s case or questions.
If you have questions about California attorney competence or compliance, feel free to contact our office.
© Ross Law, 2014
