What Lawyers Can (and Should) Guarantee

Published in The Bottom Line, State Bar of California Law Practice Management and Technology Section

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For lawyers to guarantee a result in a legal matter comes under Rule of Professional Conduct 7.1's prohibition of false or misleading communication,

which the ABA's commentary says includes "lead[ing] a reasonable person to form an unjustified expectation" about what an attorney can accomplish. Similarly, the State Bar of California Rule of Professional Conduct 1-400 prohibits any communication "which contains guarantees, warranties, or predictions regarding the result of the representation" of a client. However, lawyers and law firms can guarantee a level of effort and standards of performance without violating any professional standards, because to do so in the right way deals with factors within the lawyer's own control. Effort and performance should not be confused with competence. The very first Rule of Professional Conduct (1.1) instructs that, "a lawyer shall provide competent representation to a client." But competence is actually a pretty low benchmark. Clients see lawyers as competent, and on a skill level typically cannot tell the difference among lawyers. Any lawyer with a law degree and license from the state is assumed to be as competent as the next lawyer. Certainly the many lawyer rankings (by Avvo, Best Lawyers, Chambers, SuperLawyers, US News & World Report, and many others) attempt to establish degrees of competency. But no matter how "scientific" such rankings claim to be, the weight they carry with the general public is debatable.

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