The Lawyer's Duty of Competence in a Climate-Imperiled World

34 Pages Posted: 2 Mar 2024 Last revised: 3 Apr 2024

See all articles by John C. Dernbach

John C. Dernbach

Widener University - Commonwealth Law School

Irma S. Russell

University of Missouri at Kansas City - School of Law

Matthew Bogoshian

University of California, Davis - School of Law

Date Written: February 29, 2024

Abstract

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as the client’s needs and the perils in the real world change.

The Article first examines the concept of competence for lawyers and other professionals and provides examples of how professional competence evolves under changing circumstances. It explores the mandate and structure of Model Rule 1.1 and identifies the related issue of professional malpractice. Then it applies the concept of competence to the legal professional’s role as new facts and conditions concerning climate change emerge. It also describes guidance on these responsibilities issued by the Law Society of England and Wales in early 2023. The Article next describes the benefits of systems leadership skills and capacities as a means to effectively practice law as standards of competence evolve. We are not arguing that leadership is included in the duty of competence. But the increasing pace of the climate crisis, and the increasingly sophisticated tools and practices that lawyers now have to address the crisis, expand what lawyers should reasonably do for clients. Finally, the Article identifies principles for climate-competent lawyering.

Keywords: climate change, climate change law, professional responsibility, duty of competence, leadership, systems leadership, climate-conscious lawyering, climate-competent lawyering, legal profession, legal ethics, lawyer, attorney, sustainable development, sustainability, environmental law

JEL Classification: K00, K19, K32, K49, Q28, Q38, Q48, Q01

Suggested Citation

Dernbach, John C. and Russell, Irma S. and Bogoshian, Matthew, The Lawyer's Duty of Competence in a Climate-Imperiled World (February 29, 2024). University of Missouri-Kansas City Law Review, Vol. 92, No. 4, 2023, Widener Law Commonwealth Research Paper No. 24-02, Available at SSRN: https://ssrn.com/abstract=4742669

John C. Dernbach (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States

Irma S. Russell

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

Matthew Bogoshian

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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