Competency and Capacity
Rule 1.1: Competence states that
When representing a start-up, how does one meet the requirement of competence? Think of all of the areas of law that an entrepreneurship law attorney will encounter: tax law, securities law, employment law, intellectual property law, data privacy law, contract law, etc. Now think of all of those areas not just from a federal level standpoint, but also at a state level. When you consider state laws too, now you’ve significantly increased the areas/laws you need to be competent in. Sometimes cities also add to the mix with their ordinances.
From a business development standpoint, you’d like to represent your client in every legal matter it encounters. And to the extent you can reach the requisite level of competence through reasonable preparation, you can do so. But sometimes you are in a position where the question requires a specialist. You should be able to spot issues, but you may not know how to resolve them. For instance, perhaps you see something that you think could be a technical tax or patent issue. If you are not a tax attorney or not a member of the patent bar, you should consult with attorneys who specialize in these areas. When you seek to add other attorneys to your team, Rule 1.1 comments provide guidance on Retaining and Contracting with Other Lawyers.
[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.
[7] When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.