1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229-231
The definitions were transferred from a “Terminology” section at the end of the Preamble
to a new Rule 1.0.
has agreed to be subject to a lawyer’s right to control with respect to actions taken on
behalf of the lawyer or law firm.
partnerships, corporations, limited liability companies, limited liability partnerships,
other relationships regarded in law as having a legal existence separate and distinct from
that of the persons who are parties to the relationship.
Made
1. A redundant reference to limited liability partnerships in Paragraph (h)’s definition of
“partner” was deleted.
2. In response to a suggestion from members of the TBA’s Tax, Probate, and Trust Law
Section, Paragraph (b) and Comment [1] were modified to clarify that a written confirmation of an
oral consent must be transmitted to the client by “means reasonably calculated to reach the client.”
This increases the likelihood that the client will receive the confirmation and protects the lawyer
where the lawyer has transmitted the confirmation by reasonable means, but the client does not
receive it.
COMPETENCE
legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
[1] In determining whether a lawyer employs the requisite knowledge and skill in a
particular matter, relevant factors include the relative 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 feasible to refer the
matter to, or associate or consult with, a lawyer of established competence in the field in question. In
many instances, the required proficiency is that of a general practitioner. Expertise in a particular
field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to handle legal
problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as
competent as a practitioner with long experience. Some important legal skills, such as the analysis
of precedent, the evaluation of evidence and legal drafting, are required in all legal problems.
Perhaps the most fundamental legal skill consists of determining what kind of legal problems a
situation may involve, a skill that necessarily transcends any particular specialized knowledge. A
lawyer can provide adequate representation in a wholly novel field through necessary study. Compe-
tent representation can also be provided through the association of a lawyer of established
competence in the field in question.
In a situation in which a client is threatened with imminent and
irreparable harm,a lawyer may give advice or assistance in a matter in which the lawyer does not
have the skill ordinarily required where referral to or consultation or association with another lawyer
would be impractical. Even in an emergency
such a situation, however, assistance should be limited
to that reasonably necessary in the circumstances, for ill-considered action under emergency
[4] A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for
an unrepresented person. See also Rule 6.2.
[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 elaborate treatment than matters of lesser consequence.
[6] To maintain the requisite knowledge and skill, a lawyer should engage in regular
continuing study and education which is pertinent to the lawyer’s practice and should
conscientiously satisfy all requirements for continuing legal education in all jurisdictions in which
the lawyer is licensed to practice law. If a system of peer review has been established, the lawyer
should consider making use of it in appropriate circumstances.
See Rule 1.0(i)
DR 6-101(A)(1) provides that a lawyer shall not handle a matter "which he knows or should
know that he is not competent to handle, without associating himself with a lawyer who is
competent to handle it."DR 6-101(A)(2) requires "preparation adequate in the circumstances."
Rule 1.1 more fully particularizes the elements of competence. Whereas DR 6-101(A)(3) prohibits
the "[n]eglect of a legal matter," Rule 1.1 does not contain such a prohibition. Instead, Rule 1.1
affirmatively requires the lawyer to be competent.
The Committee modified Comment [1] by deleting the two examples of when a lawyer
might be held to the standard of a specialist -- “when a lawyer is practicing in a field of law
regarded by lawyers as requiring special expertise, or in which lawyers may be certified as
specialists by the Commission on Specialization and Continuing Legal Education” and “when a
lawyer claims to have special expertise.”
The Committee modified Comment [2] by deleting the statement that “a lawyer should not
undertake the representation of a client in a matter the lawyer is not personally competent to handle
unless the client is first advised that the lawyer will need to associate another lawyer in the matter.”
[7] In order to be certified as a specialist by the Commission on Specialization and
Continuing Legal Education, a lawyer must carry at least $500,000 malpractice insurance.
Although there is no rule requiring lawyers to carry malpractice insurance, a lawyer should
carry such malpractice insurance, or have in reserve sufficient assets, as will enable the
lawyer to compensate the lawyer’s clients for reasonably foreseeable losses that may be
caused by the failure of the lawyer to represent the client in accordance with the standards of
reasonable lawyers in this Tennessee.
[8] Although the duty set forth in this rule is only a duty to provide competent
representation to a person a lawyer is representing as a client, a lawyer should also act
reasonably to prevent a prospective client who the lawyer declines to represent in a matter
from erroneously assuming that the lawyer’s decision not to undertake the representation
lawyer. It is particularly important that the lawyer do so if the prospective client has
consulted with the lawyer about the matter at the lawyer’s office, at a mutually prearranged
meeting, or at a meeting initiated by the lawyer. Upon deciding not to represent the
prospective client in the matter, the lawyer should, prior to or within a reasonable time after
the conclusion of the consultation, communicate with the prospective client in a way
reasonably calculated to inform the prospective client that the lawyer is not undertaking the
representation and that the prospective client should promptly consult another lawyer if he
or she is still interested in pursuing the matter. In many instances a lawyer who declines to
represent a prospective client in a matter will be well-advised to communicate this
information to the prospective client in writing.
[9]See Rule 1.8(H) with respect to the validity of agreements between a lawyer
and a client which prospectively limit the lawyer’s liability for malpractice or settle client
claims that the lawyer did not provide them with competent representation. Although
Rule 1.2(D) permits a lawyer and client to agree to limit the objectives or scope of the
lawyer’s representation, the lawyer is prohibited from entering into any such agreement
as would prevent the lawyer from providing the client with the competent representation
required by this Rule.
[10] If a lawyer comes to know that he or she has not provided competent
representation to a client and that the failure to do so is likely to have or has had a material
adverse effect on the representation of the client, the lawyer should try to prevent or rectify
the adverse effect. If unable to do so, the lawyer should consult with the client about the
problem and act reasonably to compensate client for losses caused by the failure of the
lawyer to provide the competent representation required by this rule.
All deletions were made to bring Proposed Tennessee Rule 1.1 into conformity with ABA
Model Rule 1.1. Although the Committee approved the substance of the deleted material, it was the
conclusion that it was not sufficiently important to warrant sacrificing the uniformity that comes
with adoption of the ABA Model Rule.
Made
1. In light of the Committee’s approval of a suggestion from members of the TBA’s Tax,
Probate and Trust Law Section that Comments [6] and [7] to Rule 1.14 be modified to replace the
concept of an “emergency” with a more specific reference to situations in which a client will suffer
“imminent and irreparable harm,” the Committee concluded that Comment [3] to this Rule should
be similarly modified. In both situations, the Committee was concerned that the concept of an
emergency might be too narrowly construed so that it would only embrace unexpected and
suddenly-occurring situations, rather than all situations in which a client needs a lawyer’s help to
prevent imminent and irreparable harm. This change is also consistent with the suggestion of the
Professionalism Committee of the Knoxville Bar Association that Comment [3]’s reference to an
“emergency” be defined.
2. The TBA Committee considered, but did not approve, the recommendation of the Board
of Professional Responsibility that Proposed Rule 1.1 be replaced with the substance of DR 6-
101(A). The Board contends that DR 6-101(A)(1) affords clients more protection, will be easier to
enforce, and gives more guidance to lawyers. For the following reasons, the TBA Committee
disagrees with the Board’s conclusions for a number of reasons:
a. Replacing Proposed Rule 1.1 with DR 6-101 would be inconsistent with the
Committee’s goal of promoting uniformity among state ethics rules.
afforded by DR 6-101(A)(2) and (3). There is no question that a lawyer who
violates DR 6- 101(A)(2) (“a lawyer shall not handle a legal matter
without preparation adequate in the circumstances”) will have failed
to provide “competent representation to a client” as defined in Proposed
Rules 1.1 to include “preparation reasonably necessary for the representa-
tion.” Comment [5] reinforces this point by repeating that reasonably competent
representation “also includes adequate preparation.” The Comment
provides further guidance by stating that “required attention and preparation are
determined in part by what is at stake; major litigation and complex transactions
ordinarily require more elaborate treatment than matters of lesser
consequence.”Similarly, a lawyer who violates DR 6-101(A)(3) (“a lawyer
shall not neglect a legal matter entrusted to the lawyer” will violate
Proposed Rule 1.1's duty to provide competent representation as defined to
include “thoroughness and preparation reasonably necessary for the
representation.”) Neglecting a matter would also violate Rule 1.3's requirement
that the lawyer act with “reasonable diligence.”
c. The TBA Committee acknowledges that Proposed Rule 1.1 differs from DR 6-
101(A)(1) in that it does specifically preclude a lawyer from “handling a matter that the
lawyer knows or should know the lawyer is not competent to handle.”A lawyer cannot
violate Rule 1.1 by undertaking a case that lawyer is not competent to handle. Rather, Rule
1.1 will only be violated if the lawyer, having undertaken a case the lawyer was not
competent to handle, thereafter fails to provide competent representation. Concurring in the
reasoning set forth in Comment [2], the Committee believes that, for purposes of discipline,
the lawyer should be judged not by what competence he or she is thought to have when a
case is undertaken, but rather by the quality of the representation actually provided to the
client by virtue of the lawyer’s preparation or association of another lawyer. Also, the TBA
Committee does not believe it makes sense for a lawyer who competently represented a
client to be exposed to a risk of discipline because the lawyer was not competent to handle
the matter when the representation was undertaken.
d. The Proposed Rule affords the public greater protection than DR 6-101(A)
because it permits discipline of a lawyer who does not neglect a matter, but who
nonetheless fails to provide competent representation because of a defect in either
lawyer’s knowledge or skill as would be reasonably necessary for the representation.
SCOPE OF THE REPRESENTATION AND THE ALLOCATION OF
AUTHORITY BETWEEN THE LAWYER AND CLIENT
objectives of the representation and may take such action on behalf of the client as is impliedly
authorized to carry out the representationA lawyer shall abide by a client's decision whether to
settle a matter. In a criminal case, the lawyer shall abide by the client's decision as to a plea to be
entered, whether to waive jury trial, and whether the client will testify.
constitute an endorsement of the client's political, economic, social or moral views or activities.
scope of a client’s representation if the limitation is reasonable under the
circumstances and the client gives consent, preferably in writing, after consultation.
or reasonably should know is criminal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the law.
[1] Both lawyer and client have authority and responsibility in the objectives and means of
representation. The client has ultimate authority to determine the purposes to be served by legal
representation, within the limits imposed by law and the lawyer's professional obligations. Also, the
decisions specified in paragraph (a), such as whether to settle a civil matter, must be made by the
client. Other decisions may be made by the lawyer pursuant to the lawyer’s implied authority to
take action necessary to carry out the representation, subject to the lawyer’s duty to keep the client
reasonably informed about the status of the representation. See Rule 1.4.A clear distinction
between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer
relationship partakes of a joint undertaking. In questions of means, for example, the lawyer
normally will assume responsibility for technical and legal tactical issues, but usually will defer to
the client regarding such questions as the expense to be incurred and concern for third persons who
might be adversely affected. Law defining the lawyer's scope of authority in litigation varies among
jurisdictions.
[2] Paragraph (a) recognizes that clients normally defer to the special knowledge and skill
of their lawyer. At the same time, a lawyer is not required to pursue objectives or employ means
simply because a client may instruct the lawyer do so. Although a lawyer, as an agent, normally
must abide by the client’s instructions with respect to the representation, a lawyer may always
refuse to engage in conduct that the lawyer reasonably believes to be unlawful or prohibited by the
Rules of Professional Conduct and may take action that the lawyer reasonably believes to be
required by law or the Rules of Professional Conduct. Also, if a lawyer has a fundamental
disagreement with the client about the client’s objectives or the means to be used to accomplish
them, the lawyer may withdraw from the representation. See Rule 1.16.
[3] Communication between the lawyer and the client is necessary for the client to
effectively participate in decisions relating to client’s representation. The lawyer must, therefore,