Thoroughness and Preparation

Thoroughness and Preparation

A lawyer can know the governing law cold and still fail a client. The lawyer misses a document, treats an unchecked statement as fact, or relies on an authority never read. Rule 1.1 guards against this by naming thoroughness and preparation beside legal knowledge and skill, and by measuring all four against what is "reasonably necessary for the representation."¹ Thoroughness concerns how completely the lawyer examines the facts and the law. Preparation concerns doing that examining before acting for the client. Knowledge cannot substitute for work left undone.

Womack v. Yeoman shows the gap between work done and work assumed. Plaintiff's counsel accused defense counsel of hacking into his client's social media account and asked for sanctions. The court overruled the motion. It found that defense counsel had not hacked anything but had conducted diligent and thorough research, and it ordered plaintiff's counsel to pay her costs of defending a meritless motion.² Arguably, a better understanding of social media and how it works would have made plaintiff's counsel less inclined to make the accusation.³

Both lawyers formed a view about how the defense had come by its information. Defense counsel's view rested on research. Plaintiff's counsel's rested on a theory that did not hold. The lost motion and the cost order show what an untested assumption can buy. The technology side of the case returns later in this chapter; the point here is the work that thoroughness demands.

How much work satisfies the duty depends on the matter, because the rule ties each ingredient to what is reasonably necessary for the representation.⁴ Battle v. Thornton shows the same idea in a criminal-defense malpractice setting. The court declined to define the standard of care by reference to a recognized specialty. It looked instead to the general practice of criminal law, coupled with a requirement that the particular lawyer have the training and experience to handle the particular case. It added that the more complex and complicated the case, the more training and experience presumably will be required.⁵ The same logic governs preparation. One fixed amount of verification would either burden routine tasks with needless work or leave serious matters underprotected.

The duty reaches beyond litigation. A lawyer who prepares an evaluation of a client's legal position for a third person to rely on must apply the legal knowledge, skill, thoroughness, and preparation reasonably necessary to that task.⁶ Whether the third person can sue the lawyer for negligent preparation is a separate question of state substantive law, and the disciplinary duty of competence does not wait on the answer. Opinion letters, due diligence, and drafting are therefore measured by the same standard as courtroom work.

A fact pattern that pairs a lawyer's sound legal knowledge with action on a client's unverified word, about a point a modest inquiry would have settled, is testing thoroughness. Ask what inquiry the matter reasonably required, and whether the lawyer made it.