I fully concur with the court’s opinion in this case. I only wish to note some additional concerns which I have regarding rule 6-101 of the Rules of Professional Conduct.1
Rule 6-101 seems to provide for the discipline of careless, negligent, or incompetent attorneys. Its interpretation, however, has never been an issue before this court since the rule’s enactment in 1975. As a result, the applicability of the rule to specific fact situations is far from clear.
The burden of this rule unfortunately appears to fall disproportionately on younger members of the legal profession who begin their *690careers as solo practitioners. It is they who are most likely to lack “the learning and skill ordinarily possessed by lawyers.. . who perform... similar services. ..,” yet be unable to easily “associate” or “professionally consult” another lawyer possessing the requisite learning and skill. It has been suggested that rule 6-101 may implicitly mandate an apprenticeship system for beginning lawyers. (See Schwartz, Lawyers and the Legal Profession (1979) p. 389.)
Despite recent trends in legal education, graduates of law schools in this state or in other parts of the country are seldom prepared to begin the practice of law on their own. Law schools have traditionally emphasized training in legal reasoning as opposed to legal practice: “how to think” rather than “how to do.” While this may be a necessary predicate to the practice of law, it places increasingly severe burdens on law school graduates who are unable to secure employment with large law firms or government agencies where they have access to advice from experienced colleagues.
Another major problem with rule 6-101 lies in determining what mental state is necessary for a violation. Specifically, I am unclear as to whether and under what circumstances “mere negligence” is punishable under the rule.
When paraphrased subdivision (1) states that an attorney “shall not wilfully or habitually” perform legal services “if he knows or reasonably should know” he is not competent to do so. (Italics added.) Taken literally, the rule suggests that the performance of incompetent legal services is not subject to discipline if the attorney did not intend the performance in the first place, or at least if the accidental performance of incompetent services is not “habitual.” Since it is hard to imagine a situation where an attorney would accidentally perform a legal service, the use of the phrase “wilfully or habitually” appears to be redundant. Alternatively, the State Bar2 may have intended that only “habitual” negligence be punishable under the rule. Unfortunately, I can see no accepted way of reading the English language to derive that meaning.
In the instant case, it seems clear that petitioner was aware that he lacked the requisite skill and training to handle the probate of the estate *691since he initially consulted an experienced probate attorney. It is therefore unnecessary for this court to address the issue as to whether or not rule 6-101 would apply if it had only been shown that petitioner “should have known” he was not competent to handle the case. It is my hope that before a case raising that issue comes before this court, the State Bar will consider an appropriate clarification of the rule.
See footnote 1 of the court’s opinion, ante, page 685.
I recognize that since this court has the ultimate authority to approve or reject the State Bar Disciplinary Rules (Bus. & Prof. Code, § 6076), it must accept at least part of the blame for adopting the confusing language of this rule.