Professional Negligence, Paralegals and Modern Legal Ethics between the Bookends

Over the past few months three books have come to the office which deserve some attention from the legal profession. Each is unique in its own way and serves a useful purpose. The first of the three is Professional Negligence1 by Australian National University law professor David F. Partlett. The book deals fundamentally with tort liability of professionals, mainly, M.Ds. and lawyers, but includes discussion and analysis of other professionals such as accountants, architects, engineers and the like. The decisions discussed are mainly English and Australian but there is plenty of material from the United States. Besides being a fine research tool, this 394 page volume (excluding the index) includes a wealth of references to much of the literature on the subject. Insofar as lawyers are concerned, (and perhaps for all professionals) the related problems of professional liability and professional competence have always been with us. Clearly distinguishing between them has been difficult. Is a lack of competence a matter of fault or negligence or is it something more than a slip or error? Professor Partlett concludes that most successful actions against professionals involve some kind of mechanical error such as a failure to comply with the statute of limitations or a failure to prosecute actions resulting in dismissal under jurisdictional requirem e n t ~ . ~ Few successful negligence actions involve failure of professional skill and j ~ d g m e n t . ~ What is competence? May incompetence be caused by negligence? Is incompetence caused by fault? Such things as insanity, lack of education, lack of ability may not be caused by any fault on the part of the practitioner. Legal scholars have not begun to in-