The Mindfulness Blog

Rule 1.1-- the very first rule in the Model Rules of professional conduct drafted by the American Bar Association ("ABA") and adopted/adapted by almost all of the fifty State governing bodies-- is the Rule entitled: Competence.

Curiously, my research of State rules indicates that only one State actually defines the term "competence" in the text of the controlling Rule (California). One other State includes a Comment to the Rule, that generally speaks to the notion of competence (Virginia). And none of the ABA Model Rules or related State Rules identify "wellbeing" as a factor that may bear upon lawyer competence.*

I'm not naive about the political realities of the rulemaking process, but honestly, that surprises me. Both because it's so obvious, and because one would think there might be more uniformity of thought about something so important that it is the first of all the matters addressed by the ABA in its Model Rules and the various States that adopted or adapted those same Rules.

Every lawyer recognizes that there is a substantive difference between Rules and Comments and it's easy to get lost in the weeds, debating the significance of that difference. The truly meaningful debate is about the policy behind the Rules or Comments, and surely, there ought to be uniformity there.

One can certainly debate the meaning or definition of wellbeing, but can there be a genuine difference of opinion as to whether a lawyer's professional competence is impacted by his/her state of wellbeing? Respectfully, I think not.

If knowledge of related technology is relevant to the matter of professional competence (more-and-more the case, in many States) then why not one's contemporary state of wellbeing?

To be truly competent, we must be well!


* The California Rule does refer to "mental, physical and physical ability" and the Virginia Comment refers to "A lawyer's mental, emotional and physical well-being", as being related to the notion of lawyer competence.