FEATURE ARTICLE: Lawyering Ethically in a Time of Uncertainty
Author: Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Legal Editor: Carrie E. Parker
This article is featured in Volume 6, Number 7 of the Legal Ethics and Malpractice Reporter, published July 31, 2025.
Lawyers are used to operating in fluid legal conditions, but adapting can be especially difficult when changes are rapid and sweeping. For example, major legislation like the One Big Beautiful Bill Act changes multiple areas of the law. In addition, a very active federal judiciary, including the U.S. Supreme Court, has changed the law in other ways recently.
In dealing with change, two provisions of the Rules of Professional Conduct are most important: Rule 1.1, which deals with the lawyer’s ethical responsibility to be competent, and Rule 2.1, which addresses the lawyer’s role as a client advisor.
Kansas Rule of Professional Conduct 1.1 states:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment 8 to the rule explains:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.
Although this comment is most often discussed for its requirement of technical competence it also requires that lawyers “keep abreast of changes in the law and its practice….” Both the Model Rules and the Missouri Rules have essentially the same rule and comment (although in Missouri, it is Rule 4-1.1, Comment 6).
The problem is that there is no clear definition of what is meant by competent representation. Case law gives indicators, but finding a general rule is not easy, if possible at all. Rule 1.1 itself provides a list of factors that guide us:
- legal knowledge;
- skill;
- thoroughness; and
- preparation.
Of these four listed factors, in dealing with uncertainty and rapid change in the legal environment, legal knowledge and preparation certainly will be critical in achieving an ethical level of competence. Most experienced lawyers have dealt with massive changes in the laws and the uncertainty that affects judgment in the period in which new legislation, for instance, is uncertain. Once legislation is introduced, if not before, a lawyer must ensure that she follows its progress and advises clients of that progress and how that may affect the client’s interests. It is hard to imagine that failure to do so would not put an attorney at risk of violating Rule 1.1.
Similarly, in the case of new or proposed legislation, not only must the attorney keep up with its progress, but she must all do so with a reasonable degree of thoroughness. Simply reading media accounts of new or proposed legislation would not appear to be sufficient. Kansas Rule of Professional Conduct 1.0(i) defines reasonable acts by a lawyer as: “conduct of a reasonably prudent and competent lawyer.” The pairing of reasonable and competent in this definition suggests the two ideas are closely aligned. Failure to keep up with new, legal changes relevant to a client’s matter would hardly seem prudent.
Another interesting potential guide to the meaning of competence is found in Kansas Supreme Court Rule 233, which lists problems for which Kansas lawyers should consult the Kansas Lawyers Assistance Program and which might affect the ability to provide competent representation:
The Kansas Lawyers Assistance Program (KALAP) is established to fulfill the following purpose:
- provide immediate and continuing assistance to any legal professional who is a lawyer, bar applicant, or law student and who is experiencing a physical or mental health issue such as depression, stress, grief, anxiety, alcohol or drug abuse, gambling addiction, age-related concerns, or any other circumstance that may affect the legal professional’s quality of life or ability to perform the legal professional’s duties;
Here we have a list of physical and psychological factors that may affect a lawyer’s “ability to perform the legal professional’s duty.”
Why would illness be a concern in a rapidly changing legal environment? The answer, of course, is stress. When the law is changing every day or even several times in a day—as for instance in the signing of an executive order and then rapid injunctive relief granted by one or more courts—this means that lawyers must devote a substantial amount of time and resources in keeping up with all these changes. That means extra stress in many already highly stressed lives. Rapid legal changes may also make delays in a lawyer’s efforts due to illness, even short delays, problematic. Kansas Rule of Professional Conduct 1.4 requires that:
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment 1 adds:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer…
While this is not a rule that requires 24/7 attention by a lawyer, it does mean that, in the event of a lawyer’s inability to carry on the representation for a period because of illness or voluntary absences (for a vacation, for, instance) at times of rapid change that may require an immediate response (e.g., an imminent corporate transaction in which a newly signed executive order may have an impact), a lawyer needs to ensure that a someone else can cover for her.
In addition to the competency issues caused by rapid legal change, there are also issues of general legal advising in these situations that may be impacted. Kansas Rule of Professional Conduct 2.1 states:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Model Rule 2.1 and Missouri Rule 4-2.1 are essentially the same.
Legal and political uncertainty may make the exercise of “independent professional judgment and…candid advice” more difficult. Political passions are running incredibly high at this time. The judiciary, too, is feared to be more political, and rapid orders are coming from the bench with little notice. Calculating legal outcomes now seems to require not only legal knowledge but political savvy on the part of lawyers. Lawyers are human and many are feeling quite politically motivated these days. That political feeling may well bleed into advice to clients on issues of politics, such as the political beliefs of a particular judge or the political aspects of a new statute or case. Rule 2.1 makes it clear that lawyers may comment on non-legal matters so long as they are competent to do so, but it also states that a lawyer’s advice must be independent. Lawyers’ political views hold the potential of making the independence required by Rule 2.1 more difficult. Lawyers may be tempted to give political advice mixed with legal advice to clients who seek advice on potential litigation, for example, that is politically impactful. That may well pose dangers under Rule 2.1.
The final area that may be seriously impacted by rapid legal change and uncertainty is that, pursuant to the earlier competency analysis, matters may require far more time expended. Kansas Rule of Professional Conduct 1.5 requires that a lawyer’s fee be “reasonable.” Both the Model Rules and the Missouri Rules require that a fee not be “unreasonable.” How much can a lawyer charge for all of the extra preparation and research necessary to keep up with rapidly changing law? Further, if a lawyer needs to spend the time in additional preparation and research for more than one client, then how should that extra time be charged? On the one hand, Rule 1.1 requires that the extra time be expended, but will Rule 1.5 put limits on how much charges for additional time will be deemed reasonable. These will not be simple questions to answer and will undoubtedly require fact specific analysis.1
We live in a period of accelerating change on many fronts, including the law. Lawyers must be aware of that change and not be caught violating ethical rules that are implicated in their responses to such change.
1ABA Formal Ethics Opinion 97-379 which includes a discussion of billing more than one client for the same time may be helpful in this regard.
READ THE FULL ISSUE OF LEMR, Vol. 6, No. 7
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