The Summer BBQ, A Malpractice Danger Zone
December 7, 2022
Reading time: 5 minutes
Staying too long in the sun or getting too close to the flame are not the only ways that a lawyer can get burned at the summer barbeque. As you’re sipping lemonade and engaging in casual conversation, a friend or family member may look to you and say, “Hey, you’re a lawyer, right? I’ve got this issue that has just come up with my business [homeowners insurance, car accident, mother’s estate, etc.] . . . I’m not sure what I should do. Do you think that you could help me? I’m really in a tight spot.” You take in a breath and then say, “Well, I normally only practice criminal law defense, but I could probably help you.” STOP! The summer barbeque has just become a malpractice danger zone.
The thought of helping friends, family and existing clients can often tempt attorneys to dabble in areas of law where they lack expertise. The dangers of dabbling are probably obvious to us, but we’re often tempted to do it anyway for any one of a number of reasons, including:
- A trusted friend or family member has asked for help, and we don’t want to let them down.
- An existing client asks for advice in a matter that is completely different from matters we’ve previously handled for the client, and we don’t want to lose the client to another firm.
- The matter seems interesting.
- The expertise needed appears minimal.
- The matter looks trivial, and a common sense answer seems obvious.
- Revenue woes.
The ABA’s Profile of Legal Malpractice Claims (2011) found that 45% of all reported claims result from substantive law errors. Dabbling can be a driver of these types of malpractice claims when lawyers take on legal issues without expertise given that substantive law errors (and therefore malpractice) occur more frequently in unfamiliar areas of practice.
Making matters even more dicey, there are ethical considerations that add to malpractice risk. For example, Rule 1.1 of the Model Rules of Professional Conduct provides:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
While Ethical Consideration 6-3 of the Model Code of Professional Conduct provides that a lawyer can provide competent representation in a novel area of practice by undertaking the needed study and investigation, this type of representation is ethical only if the lawyer’s study and investigation will not result in unreasonable delay or expense to the client. So be warned – if you’re taking on a matter in a new area of practice, you’ll face not only the additional burden of showing that you’ve gained the necessary expertise but also that your billing for the matter is reasonable given the additional study.
Given all the risks in dabbling, ask yourself these questions before you jump in:
Have I handled matters like this one before? If so, to what degree? Was the experience gained sufficient to become competent? Is this matter truly within my expertise?
If not within my areas of expertise, can I study up? Can I become qualified through study and investigation?
How will I know when I am competent? (If you don’t know the area of practice, how will you know the extent of your knowledge is enough?)
If I can become qualified through study and investigation, how much time will it take and how much expense to the client will there be? Can I become qualified without unreasonable expense or delay to the client? What part of my study can be reasonably billed to the client?
Am I willing to take on this study and investigation knowing that I may not be able to bill the client for the time? Can I devote the time to learning a new area? Am I willing to?
Is my practice set up to take on this new area? Can my staff and systems handle the work presented by this new practice area? Am I willing to devote the time and resources to get them ready to support this matter?
If unreasonable expense or delay for the client is possible, can I resolve that issue by associating in a lawyer with established competence?
Have I explained fully to the client why I am associating in another lawyer and has the client agreed to the association? Do I have my client’s informed consent to associating in competent counsel after full disclosure?
Am I willing to continue to expand my knowledge and skill in this area of practice throughout the representation?
Is the better option to refer the case to competent counsel, or to associate in competent counsel and remain on the matter?
What is in the best interest of the client, referral to another attorney with expertise, or retaining the client through the end of the matter?
If you have determined that you are competent (or can become competent) and have met your obligations to your client as described above, as you move forward, keep these practice tips in mind:
Document, document, document. Memorialize and document work performed, communications, advice, consent, billing agreements and expectations, and the scope of the representation performed by you and any attorneys you associate in on the matter.
Invest a little more time in staff supervision. You will not be the only one venturing out into a new area. Continue to ensure your staff and your systems are up to the task.
Carefully outline responsibilities. If you have referred the case or associated with another lawyer, make sure who does what is clearly outlined in writing and understood by all. You do not want to be held liable for the malpractice of another attorney.
Communicate, communicate, communicate with your client, your associated counsel and your staff.
Continue to seek the advice of experts. This is especially important.
Keep track of every effort to become an expert , including all of the work done that is not billed to the client.
Finally, while lawyers can and do expand into new areas of practice, it is important that we do so deliberately and with a willingness to learn what is necessary to provide quality legal services to our clients.
Additional Ethics content
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According to the Model Rules of Professional Conduct, there is a duty to maintain the integrity of the practice of law.
An abbreviation of the Latin word “statim”, “stat” means “immediate” – which is how quickly you must persuade your client to reveal any fraud to the court.
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