Study guide
Competence, Diligence, Communication, and Scope of Representation
California Bar Exam Exam
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1 Exam Format and Core Skills
California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy
2 Civil Procedure
Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion
3 Constitutional Law
Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause
4 Contracts
Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies
5 Criminal Law and Procedure
Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights
6 Evidence
Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)
7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
8 Torts
Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities
9 Business Associations
Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))
10 Community Property
General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property
11 Professional Responsibility
Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties
12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
13 Trusts
Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)
14 Wills and Succession
Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes
15 Performance Test
The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution
Competence, Diligence, Communication, and Scope of Representation
Key Takeaways Explain This Topic AI
CRPC 1.1 and ABA MR 1.1 both require competence (legal knowledge, skill, thoroughness, and preparation); California's Rule 1.1(b) defines the violation as INTENTIONAL, RECKLESS, GROSSLY NEGLIGENT, OR REPEATED failures, so a single ordinary-negligence slip is malpractice but not necessarily a disciplinable competence violation in California, unlike the Model Rule's flatter standard.
Comment [8] to ABA MR 1.1 and California's competence framework both embrace technological competence — a lawyer must keep abreast of the benefits and risks of relevant technology.
CRPC 1.3 and ABA MR 1.3 require diligence; California phrases the duty as not intentionally, recklessly, repeatedly, or with gross negligence failing to act with reasonable diligence, again setting a higher culpability floor for discipline than the Model Rule.
CRPC 1.4 and ABA MR 1.4 require communication: promptly informing the client of decisions requiring informed consent, reasonably consulting about means, keeping the client reasonably informed, and explaining matters enough for informed decisions; California's Bus. & Prof. Code § 6068(m) independently requires responding promptly to client inquiries and keeping clients informed of significant developments.
CRPC 1.2 and ABA MR 1.2 allocate authority: the client decides objectives (and settlement, plea, jury waiver, and whether to testify), the lawyer decides means after consultation; a lawyer may limit the scope of representation if reasonable and with the client's informed consent, and may not counsel or assist crime or fraud (CRPC 1.2.1).
Last updated: June 2026
Both California Rule 1.1 and ABA Model Rule 1.1 open with the same core command: a lawyer shall provide competent representation, meaning the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer can supply competence by attaining it (learning the area), by associating with a lawyer who is competent, or, in an emergency, by handling a matter with which the lawyer lacks the requisite skill so long as the assistance is limited to what is reasonably necessary.
The crucial California wrinkle appears in Rule 1.1(b), which defines the disciplinable violation as a failure that is INTENTIONAL, RECKLESS, GROSSLY NEGLIGENT, OR REPEATED. This is a deliberate elevation of the threshold above the Model Rule. Under the Model Rules, a single act of incompetence can in theory be sanctionable; in California, an isolated instance of ordinary negligence is a malpractice problem and a potential civil claim, but it is not, standing alone, a competence violation warranting discipline.
To discipline under California Rule 1.1 the State Bar must show a culpable mental state — recklessness or gross negligence — or a pattern of repeated failures. Bar essays love to test this distinction by giving you a lawyer who botches a single deadline or misreads one statute: the disciplined answer notes that this may expose the lawyer to a malpractice suit but explains that, under Rule 1.1(b), discipline requires the heightened culpability or repetition that the facts may or may not supply.
Note that competence also embraces technological competence: a lawyer must understand the benefits and risks of the technology relevant to the representation, including e-discovery and the security of client data.
California Rule 1.3 and ABA Model Rule 1.3 both require a lawyer to act with reasonable diligence and promptness. As with competence, California raises the culpability floor: Rule 1.3(a) makes the violation a failure to act with reasonable diligence that is intentional, reckless, repeated, or grossly negligent, and Rule 1.3(b) defines reasonable diligence as acting with commitment and dedication to the client's interests and not neglecting or disregarding, or unduly delaying, a legal matter entrusted to the lawyer.
Procrastination that prejudices a client, missing a statute of limitations, or simply sitting on a matter can all violate the diligence duty if the requisite culpability is present. Communication duties run in parallel.
California Rule 1.4 and ABA Model Rule 1.4 both require a lawyer to promptly inform the client of any decision or circumstance requiring the client's informed consent, to reasonably consult with the client about the means of pursuing objectives, to keep the client reasonably informed about the status of the matter, to promptly comply with reasonable requests for information, and to advise the client about any relevant limitation on the lawyer's conduct when the lawyer knows the client expects assistance the rules forbid.
California Rule 1.4 also expressly requires the lawyer to communicate any written settlement offer, and (under Rule 1.4.1) to promptly communicate all amounts, terms, and conditions of any oral settlement offer in a civil matter or any written offer to settle, and to communicate the terms of significant plea or settlement proposals in criminal and civil matters.
Layered on top is Business & Professions Code section 6068(m), an independent statutory duty to respond promptly to reasonable client status inquiries and to keep clients reasonably informed of significant developments — a frequent California essay add-on that the Model Rules do not separately codify.
California Rule 1.2 and ABA Model Rule 1.2 divide decision-making authority between client and lawyer. The client controls the OBJECTIVES of the representation; the lawyer controls the MEANS, in consultation with the client.
Certain decisions are reserved to the client because they are too fundamental to delegate: whether to settle a civil case, and in a criminal case whether to plead guilty, whether to waive a jury trial, whether to testify, and whether to appeal. A lawyer who accepts or rejects a settlement without authority, or who waives a client's jury-trial right without consent, violates Rule 1.2 even if the lawyer believed the decision was strategically wise.
The means/objectives line is not always crisp — a decision about which witnesses to call or which legal theory to press is ordinarily a 'means' question for the lawyer — but when the means decision implicates the client's expense, third-party burdens, or moral concerns, the lawyer must consult. A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social, or moral views or activities.
Importantly, Rule 1.2 permits a lawyer to LIMIT the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent — for example, an unbundled engagement to draft a single document or to appear for one hearing. The limitation must still leave the client adequately served; a lawyer cannot use a scope limitation to escape the duty of competence within the agreed scope.
A lawyer may give an honest opinion about the actual consequences that appear likely to result from a client's conduct, and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law. But a lawyer may NOT counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent. In California this prohibition is set out in Rule 1.2.1, which closely tracks ABA Model Rule 1.2(d). The line between permissible advice and impermissible assistance is the bar examiner's favorite trap.
Explaining to a client what the law forbids and what the penalties are is proper counseling; helping the client structure a transaction to perpetrate a fraud, drafting documents the lawyer knows will be used to deceive, or advising the client how to conceal a crime crosses into prohibited assistance. California adds a notable carve-out reflecting state law: a lawyer may counsel a client regarding the validity, scope, and meaning of California laws that conflict with federal law (most prominently, California's cannabis laws), provided the lawyer also advises the client about related federal law and policy.
When a client announces an intention to pursue a clearly criminal or fraudulent course, the lawyer's options are to counsel against it, to decline assistance, and — if continued representation would require the lawyer to facilitate the wrongdoing — to withdraw under Rule 1.16. If the lawyer's services have already been used, the lawyer may need to take remedial steps, including, in some circumstances, disaffirming work product (a 'noisy withdrawal' concept that California treats more cautiously than the Model Rules because of California's narrower confidentiality exceptions).
Decisions Reserved to the Client vs. the Lawyer
- Decision Who Decides Rule
- Objectives of representation Client CRPC 1.2 / MR 1.2
- Whether to settle a civil case Client CRPC 1.2 / MR 1.2
- Plea, jury waiver, whether to testify, appeal (criminal) Client CRPC 1.2 / MR 1.2
Legal/tactical means (which motions, witnesses, theories) Lawyer, after consultation CRPC 1.2, 1.4 / MR 1.2, 1.4
Whether to limit scope of representation Client consent required + reasonable CRPC 1.2 / MR 1.2
Exam Hooks
CA discipline for incompetence/lack of diligence needs intentional/reckless/grossly negligent/repeated conduct — ordinary negligence is malpractice, not automatic discipline.
§ 6068(m) is a separate statutory communication duty to flag on CA essays.
Settlement, plea, jury waiver, testifying, and appeal are CLIENT decisions.
Advising on the law is fine; assisting known crime/fraud is barred (Rule 1.2.1).