The Dangers of Dabbling
The Dangers of Dabbling
By Thomas P. Sukowicz, director of Lawyers’ Risk Management Services at Hinshaw & Culbertson. He works out of the firm’s Ft. Lauderdale, Florida, and Chicago, Illinois offices. The firm’s risk management Web site is located at www.lawyeringlaw.com
Lawyers are frequently asked by family, friends, and clients to handle legal matters that are outside the lawyer’s area of practice. Sometimes it is “just” a request for some advice or a question asking whether the friend “has a case.” Or it may be a request to “just write a letter on your lawyer stationery” so the dispute can be settled without filing a lawsuit.
Lawyers may take a case as a favor that they would otherwise never consider because the friend doesn’t know any other lawyer (who will handle the matter for free) or because a client just wants help getting a son or daughter out of some kind of trouble.
It is difficult to say “No” to such requests. While there are many good reasons why a lawyer might consider dabbling, there are compelling reasons not to. The primary reason is that accepting an engagement in a matter that is outside an attorney’s area of practice greatly increases the risk of a malpractice claim. It also increases the risk of an ethical violation.
Some commentators have estimated that more than 50 percent of malpractice losses occur outside a lawyer’s primary area of practice. That is understandable, given that in any new endeavor “you don’t know what you don’t know.” That is to say -- While you are aware of the little you do know about an unfamiliar area of law, you do not know what else is out there that you should know. For example, while dabblers in a personal injury case may know the statute of limitations for such cases, they may not be aware of a much shorter notice requirement, and it may not even occur to them that they should look into that issue.
Failing to Act With Competence
Failing to act with competence is not only a basis for a legal malpractice action but also an ethical violation. Rule 1.1 of the Model Rules of Professional Conduct states that 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. *See clarification at the end of this document.
There are many disciplinary cases that illustrate the trouble that can result from dabbling. One such case is In re Mason, 122 Ill.2d 163, 522 N.E.2d 1233 (1988). In that case, an inexperienced lawyer agreed to file a personal injury claim against the Chicago Transit Authority. He diligently worked on the case until he discovered too late that he had failed to comply with a statutory requirement that notice to the CTA of a claim must be made within six months of the injury. Rather than admit his mistake, he “concocted a somewhat extensive scheme to conceal the error from his client” that included a fictitious settlement. Instead of solving the problem, the lawyer’s deception bought him a disciplinary proceeding that resulted in a reported decision describing his conduct and noting his potential malpractice liability.
Another lawyer was suspended for a year as the result of dabbling in a domestic relations case. He agreed to represent a client in a post-decree matter involving the client’s alleged failure to pay his daughter’s college expenses. The lawyer failed to familiarize himself with the pleadings, orders, or the law related to the issues; appeared for a hearing without any documents or any paper to write upon other than a piece of paper the size of a bank check; and presented no defense or explanation for his client’s failure to obey previous court orders. In re Hannah, 91 SH 485, M.R. 8281 (Ill. 1992)
In a different case, a criminal defense lawyer agreed to represent several heirs in a probate proceeding. Although he received notice of the probate proceedings, he did not appear at hearings in the probate court and did not respond to several requests by the estate’s attorney for the names of heirs, including his clients. Although a colleague later filed the appropriate petition on behalf of his clients, the petition was dismissed, and the lawyer took no other action. He was suspended for 120 days. In re Royce, 94 CH 119, M.R.9853 (Ill.S.Ct. 1994)
Another criminal defense trial lawyer agreed to handle the appeal of his client’s conviction. He was not as familiar with appellate procedure as he should have been. He failed to file a timely notice of appeal, thinking it was not required since the appeal was automatic. He later filed a motion for untimely filing of notice of appeal, which was granted, but he again filed the notice of appeal late and failed to serve a copy on the proper persons. He did not timely file or properly serve a Statement of Issues, Docketing Statement, or designation of the proceedings. Eventually, the court dismissed the case for failure to perfect the appeal.
In the disciplinary proceeding that resulted from his mishandling of the appeal, the court stated that no lawyer should approach any task without knowledge of the applicable statutes, court rules, and case law, especially in matters with which the lawyer is not familiar. In re Drew Neal, 20 P.3d 121 (N.M., 2001)
The dangers of representing family members in unfamiliar areas of practice are illustrated in In re Claggett, 544 NW2d 878 (SD 1996). In that case, a lawyer agreed to represent his wife in guardianship proceedings involving his wife’s mother, who had been seriously injured. The lawyer allowed family members to borrow from the guardianship estate and did not properly account for the estate funds. He was censured and required to provide to the Disciplinary Board proof of legal malpractice insurance or other appropriate security to protect his clients on an annual basis.
A law firm may be liable for allowing an inexperienced associate to handle a case. In Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 717 A.2d 724 (Conn., 1998), the plaintiff licensed purchasers to use its health club concept and sold distributorships to investors. The plaintiff consulted with a partner and an associate of the defendant firm regarding a trademark problem. The partner told the plaintiff that the firm possessed expertise in the field of franchising, that it was well qualified to handle the plaintiff’s legal affairs, and that he would be involved personally in the firm’s representation of the plaintiff. After being retained, the partner turned the plaintiff’s file over to the junior associate and a “contract” lawyer, neither of whom possessed expertise in the law of franchising and business opportunities. Predictably, the matter was not handled properly, and the firm was sued for malpractice.
The trial court found that the associate was liable because, in her position as a junior associate, she failed to seek appropriate supervision. The court held that sending copies of her work to two partners and pursuing supervision no further departed from the applicable standard of care. The law firm did not challenge the trial court’s determination that it breached the applicable professional standard of care.
Becoming Competent Through Study and Investigation
The comments to Model Rule 1.1 note that a lawyer can provide adequate representation in a wholly novel field through necessary study. Ethical Consideration 6-3 of the Model Code of Professional Responsibility provides that a lawyer can provide adequate representation in a wholly novel field through necessary study and investigation but may do so only if such preparation would not result in unreasonable delay or expense to the client.
In one disciplinary case, an attorney without experience in criminal law agreed to defend the 21-year-old son of a client on charges related to driving while intoxicated. He disclosed his lack of experience but stated that he believed he could competently represent the client, describing himself as efficient and economic in the use of his time. The lawyer obtained an acquittal for the client based on a novel theory, but in the process, he billed the client $50,022.25, reflecting 227 hours of billed time. All the work billed was actually done, and the lawyer and his associates spent the time they claim to have spent on that work.
The court found that the lawyer spent many of the hours billed “to educate himself in the relevant substantive law and court procedures.” It stated that inexperience did not justify charging a fee three times higher than the usual fee of an experienced lawyer for the same service because a client should not be expected to pay for the education of a lawyer when the lawyer spends excessive amounts of time on tasks which, with reasonable experience, become matters of routine.
In censuring the lawyer, the court opined that a lawyer generally should not accept employment in any area of the law in which the lawyer is not qualified unless that lawyer expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to the client. In re Fordham, 423 Mass. 481, 668 N.E.2d 816 (1996)
Becoming Competent by Association with Experienced Counsel
The ethics rules also allow an inexperienced lawyer to become competent by associating with a lawyer who is experienced. If this course of action is chosen, consider first the risk that co-counsel may commit malpractice for which the other lawyer may be held jointly liable.
If one lawyer refers the case to another lawyer and is paid a referral fee, consider the fact that in states that allow the payment of referral fees, most require that referring lawyers remain responsible for the case as if they were the partner of the receiving lawyer. Again, this could subject one lawyer to liability for the other lawyer’s malpractice.
When considering possible new client matters, screen out those that are outside the areas of practice in which you are experienced. Before taking such a case, consider the time and effort required to become competent and/or the risks involved in associating with other experienced counsel or referring the case for a fee to other counsel. You may conclude that the case is not worth the risk.
This article is intended to inform the reader of potential liability exposures for attorneys. This article reflects general principles only and does not render legal advice. Readers should consult legal, financial, insurance and other advisors if they have specific concerns. Neither the Los Angeles County Bar Association nor Aon and its affiliates assumes any responsibility for how the information in this article is applied in practice or for the accuracy and completeness of the information. Reproduction without written permission is prohibited. This article is made available to County Bar Update by Aon Direct Insurance Administrators and the Aon Attorneys’ Advantage Program, part of the LACBA Sponsored Aon Insurance Solutions Program. Aon Direct Insurance Administrators has been the sponsored broker for the Association’s professional liability program for more than 17 years. For information or to contact a representative, visit www.aonsolutions.com
* CLARIFICATION: County Bar Update published “The Dangers of Dabbling” in the September 2003 issue. In response to the article, Judge Michael D. Marcus (ret.) writes:
While the general advice in “The Dangers of Dabbling,” the lead article in the September 2003 County Bar Update, about not practicing in unfamiliar legal areas was valid (it can lead to malpractice claims), its application to California discipline law was not.
The article was incorrect in advising California lawyers that a consequence of getting involved in unfamiliar areas might result in a violation of Rule 1.1 of the Model Rules of Professional Conduct, which states that a lawyer shall not fail to provide competent representation to a client. Rule 1.1 defines “competent representation” as having the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. This is a negligence standard that does not apply in California. (See Call v. State Bar (1955) 45 Cal.2d 104 [a pre-Rule 3-110(A) case holding that mistakes of law are not disciplinable]; In the Matter of Whitehead (1991) 1 Cal. State Bar Ct. Rptr. 354, 365-366 [lack of diligence is not reckless or repeated conduct]; In the Matter of Ward (1992) 2 Cal. State Bar Ct. Rptr. 47, 51, 56-57 [failure to bring matter to trial within five years not disciplinable]; In the Matter of Respondent P. (1993) 2 Cal. State Bar Ct. Rptr. 622, 631 [negligent mistake in good faith is not actionable]; In the Matter of Fonte (1994) 2 Cal. State Bar Ct. Rptr. 752, 757 [failure to serve interrogatory responses because of calendar error not disciplinable].)
In contrast, California Rule of Professional Conduct 3-110(A) provides that an attorney “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” A California attorney, in other words, is subject to discipline if he or she fails to perform competently and where the conduct is either “intentional” (Slavkin v. State Bar (1989) 49 Cal.3d 894 [attorney ignored client’s calls for three weeks and did not perform any services]); “reckless” (In the Matter of Sullivan (1997) 3 Cal. State Bar Ct. Rptr. 608 [absence of an effective calendaring system in a high volume practice]; or “repeated” (Inniss v. State Bar (1978) 20 Cal.3d 552, 556 [a pre-Rule 3-110(A) case disciplining attorney “where a pattern of habitual offenses exists, even though the offenses may individually amount to no more than negligence ...”]). Rule 3-110(B) defines “competence” as “apply(ing) (to) the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.”
Judge Michael D. Marcus (ret.) is a mediator and arbitrator with ADR Services in Los Angeles. He is a former supervising judge of the California State Bar Court and is the secretary of LACBA’s Professional Responsibility and Ethics Committee.
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