Can a government agency lawyer be required to take on more cases than the lawyer can competently handle?

Plain-English summary

A staff attorney for a government department of social services faced a caseload that, in the lawyer's judgment, assigned more matters than any attorney could competently handle, while the department could not reduce the work (it was legally required to bring or join many of the proceedings) and could not get approval to hire more lawyers. The committee was asked whether the lawyer could accept more matters than the lawyer believed could be handled competently.

The committee grounded its answer in duties that apply to lawyers generally. DR 6-101(A) bars handling a matter without adequate preparation, neglecting a matter, and handling a matter the lawyer is not competent to handle. A lawyer must decline a matter the lawyer cannot competently handle, and if it becomes apparent after undertaking the work that the lawyer cannot render competent representation, the lawyer must seek to withdraw under DR 2-110(B)(2). Implicit in these duties is an obligation not to accept more matters than the lawyer can competently handle and to reduce an unmanageable workload, a point the committee supported with ABA 399 (1996) and ABA 347 (1981) on legal-services lawyers. The duty of competence cannot be waived by client consent; while a lawyer and client may limit the scope of a representation, they may not limit it in a way that compels neglect or inadequate preparation (DR 6-102(A) bars prospectively limiting malpractice liability).

On the supervision question, the committee applied DR 1-104(F): a subordinate lawyer may act on a supervisor's reasonable resolution of an arguable question of professional duty. So where the competence question is genuinely in doubt, the staff attorney may give weight to a supervisor's reasonable resolution, but the lawyer retains an independent obligation to judge competence and may not defer where the question is unarguable or the supervisor's resolution is unreasonable. The committee added that these duties apply with full force to government lawyers, who also carry a duty to "seek justice and to develop a full and fair record" (EC 7-14). A government lawyer therefore may not "just show up" without preparation if the result is incompetent representation, and may not accept so many matters that some must be handled neglectfully.

In practice

The opinion holds that, under the New York Code as it stood in 2002, a government agency lawyer facing an excessive caseload must consult the client (through a supervisor or agency officials) to address the overload, should seek permission to reassign or withdraw from matters that do not require the agency's legal representation, may help the agency seek court appointment of private-bar lawyers, and, if the client will not act, may decline or resign rather than handle matters incompetently. Whether declining work exposes the lawyer to employment consequences is a question of employment law the committee said is outside its jurisdiction.

The opinion holds that a supervisor's reasonable resolution of a genuinely arguable competence question may be followed, but the subordinate lawyer keeps an independent duty to assess competence and may not defer on an unarguable question or to an unreasonable instruction.

Common questions

Q: Can a supervisor require a government lawyer to take more cases than the lawyer can competently handle?

A: No. The opinion concludes the lawyer may not accept so many matters that some must be neglected or inadequately prepared, and the duty of competence under DR 6-101(A) cannot be set aside by an instruction to do so.

Q: Can the lawyer rely on a supervisor's judgment that the caseload is manageable?

A: Only where the question is genuinely arguable. The opinion applies DR 1-104(F): the lawyer may follow a supervisor's reasonable resolution of an arguable competence question, but must make an independent judgment and may not defer where the question is unarguable or the resolution unreasonable.

Q: What should the lawyer do about an unmanageable caseload?

A: The opinion directs the lawyer to consult the agency, seek to reassign or withdraw from non-essential matters, consider seeking court-appointed private counsel, and, if the client will not act, decline or resign rather than represent the agency incompetently.

Background and rules framework

The opinion interprets New York's former Code of Professional Responsibility: DR 6-101(A) (competence, preparation, and neglect), DR 1-104(F) (a subordinate lawyer acting on a supervisor's reasonable resolution of an arguable duty), DR 2-110(B)(2) (mandatory withdrawal when continued employment will violate a rule), DR 6-102(A) (no prospective limit on malpractice liability), and DR 7-101(A), with EC 7-7, 7-8, 7-13, and 7-14. The Model Rule analogues are Rule 1.1 (competence), Rule 1.3 (diligence), Rule 5.2 (responsibilities of a subordinate lawyer), and Rule 1.16 (declining or terminating representation). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR and EC numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence); MR 1.3 (diligence); MR 5.2 (subordinate lawyer); MR 1.16 (withdrawal)
• NY DR 6-101(A), DR 1-104(F), DR 2-110(B)(2), DR 6-102(A), DR 7-101(A)

Other opinions cited:

• ABA Formal Op. 399 (1996): legal-services lawyers must withdraw from matters when funding and staff cuts make caseloads unmanageable
• ABA Formal Op. 347 (1981): only matters that can be handled competently should be continued

See also

• NY State Bar Op. 1037: Government lawyers submitting position papers instead of attending status hearings
• NY State Bar Op. 762: Supervising foreign-licensed lawyers

Source

• Landing page: https://nysba.org/ethics-opinion-751/