Lawyers are frequently approached by friends, family and clients to give advice regarding a legal matter that is outside their area of practice (AOP). While it can be difficult to say no to such requests, there is one valid reason to do just that: you could be increasing your risk of a malpractice claim.
According to the American Bar Association (ABA), failing to know or apply the law is the number one most common legal malpractice claim made against an attorney. While you may be vaguely knowledgeable about an unfamiliar area of law, you likely are not aware of what else may be lurking there, such as a shorter notice requirement or an obscure statute of limitations. Missing those important details can lead to an ethics complaint, even against a well-meaning attorney who was just trying to help someone out.
So how can you minimize the risk of a malpractice claim stemming from a foray into an unfamiliar practice area?
- Just say no. Don’t take on a case outside your customary area of practice – no exceptions.
- Refer all cases in a recognized specialty to a recognized specialist.
- If a current client refuses to allow you to make a referral to a recognized specialist, withdraw representation.
- If you are unable to withdraw representation, hire a recognized specialist out of your own pocket.
- If you can’t afford to hire a specialist, immediately immerse yourself in that area of practice and prepare to provide competent representation. That’s the standard you will be held to by the ABA.
Don’t Fail to Act with Competence
Failing to act with competence is not only a basis for a legal malpractice claim, but is also an ethical violation. Rule 1.1 of the Model Rules of Professional Conduct states: A lawyer shall not fail to provide competent representation to a client. "Competent representation" is defined as having the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Time and effort are required to become competent in a particular AOP, and cutting corners to do someone a favor is usually not worth the risk.
For more information about the risks of practicing outside your practice area, contact USI Affinity today.