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Code of Professional Conduct
CHAPTER II
COMPETENCE AND QUALITY OF SERVICE
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 practise 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 and improve knowledge and skills adequate to the lawyer's practice.
(Adopted: Chapter II, Commentary 7 (n), Summer Term Convocation,
June 7, 2002)
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 injury 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.
2. As a matter of law, the English and Canadian courts have consistently held that actions by clients against their
lawyers for breach of duty stem from the contract of employment made or implied from the retainer, or from the
fiduciary relationship that exists between lawyer and client and not on any general tort basis. A contractual or
fiduciary relationship must be established: see, e.g., Groom v. Crocker et al. (1938), 2 All E.R. 394 (C.A.);
Rowswell v. Pettit et al. (1968), 68 D.L.R. (2d) 202 (Ont. H.C.J.) at pp. 209-12 (affd. with variations
as to damages, sub nom. Wilson et al. v. Rowswell (1970) S.C.R. 865).
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.
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 about 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.).
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 the delay ...", per Farris, C.J.S.C., in Re Legal Professions
Act; Sand-berg v. "F" (1945), 4 D.L.R. 446 at 447 (B.C. Visitorial Tribunal).
Cf. IBA D-1. In some jurisdictions (e.g., Ontario, Law Society Act, R.S.O. 1980, c. 233, s. 35) provision
is made for inquiry and suspension of members incapacitated by reason of age, physical or mental illness including
addiction to alcohol or drugs, or other cause.
6. For a denunciation of dilatory practices of solicitors, see Allen v. McAlpine et al. (1968), 2 W.L.R.
366 (C.A.).
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).
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.).
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