Asking an attorney not to “dabble” in an unfamiliar area of practice is an easy concept to grasp, but much more difficult to put in practice. Article after article has been written about the dangers of taking on a new type of case, and the risks associated with doing so — however, not every attorney is able to pass up a new client or turn down a family member or friend.
The question then becomes, “What can I do to reduce my risk?” The Answer: Prepare, Prepare, Prepare.
One difficulty of venturing into the unknown or unfamiliar is that you do not know what you do not know, which makes it difficult to find the mines in the minefield. Every area of practice has its minefield for the unsuspecting. There is only one way to avoid hitting a mine and that is through knowledge. You either must spend the time to gain the knowledge yourself through research or you have to search out someone who has the knowledge to help you. In either of these two situations, you must secure the consent of your client. It is your client’s right to have the information they need to make an informed decision on whether or not to hire you. Your client must have an understanding of your competency with regard to the desired representation in order to consent to your representation.
Prior to accepting a case in an unfamiliar area, it’s important to consider the Model Rules of Professional Conduct. Rule 1.1 states that “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” As the annotated comments of Rule 1.1 indicate, an attorney can agree to represent a client in an unfamiliar area of practice, but the attorney needs to learn the area of practice and do so on the attorney’s time and expense — not the client’s. As already stated, another possibility is to associate with an attorney fluent in the area of practice. If you take on the challenge, make sure your client knows you are not familiar but that you are prepared to learn. Rule 1.5 requires candor and honesty with the client and would require you to inform the client upfront regarding your lack of experience so the client can decide if they want you to proceed with their case. If you are unable or unwilling to take on learning what you are not familiar with and to do so at your expense, then do not take on the representation. You will be better off, and your client will be better served.
The most dangerous areas of practice to dabble in for attorneys are those that implicate one or more other areas of practice within the specific facts presented by the client. Unfortunately, if you are not familiar with a particular area of practice then it is difficult to know when other areas may be implicated. Let’s look at a couple of examples of area-of-practice crossover.
Estate planning is a complicated and difficult area of practice. It is governed by statute, administrative rule, and case law. An estate plan can be designed for asset protection, income, or tax savings, to name but a few. Knowing what is implicated and when takes knowledge. Without that knowledge, you are navigating the minefield with blinders on. It can be tempting to say yes to that family member or friend who asks you to create a will or an estate plan for them, but you may be better off referring them away. There is no such thing as a “simple will”.
I had an attorney tell me recently that tax is an area of practice in which they would never represent a client. Yet almost in the same breath, that attorney indicated he wanted to expand his practice to include estate work. That attorney did not know what he did not know. I explained estate planning can implicate a number of other areas of practice — tax is one area of practice which overlaps considerably with estate planning. Tax law by itself is comprehensive and subject to change quite frequently. If you do not keep up with local, state, and federal tax law then maybe you should avoid both tax and estate planning, at least without a mentor.
2) Family Law / Domestic Relations
Divorce work to many is the “bread and butter” of private practice. It is an area of practice which sometimes does not garner the respect that it deserves for its complexities. The risk to an attorney unfamiliar with this area is to fail to recognize an important issue when it is staring the attorney in the face. For instance, a transfer of assets in a divorce can be a taxable event as many divorces include sales of securities or real property to effectuate the division of a marital estate. If the case involves children that are of Native American descent, for instance, there could be tribal law implications to consider. If the settlement agreement divides a retirement account, the attorney must secure a Qualified Domestic Relations Order (QDRO) that directs the investment company to appropriately disperse the funds.
So while it can be tempting to handle that “simple” divorce for a friend or family member, you must be aware of the risk(s) that not knowing what you don’t know creates.
These are but two examples of literally hundreds. Roughly 50% of all claims can be traced back to a failure of the attorney to know the substantive law at issue in the attorney’s representation of a client. The other roughly 50% of claims can be traced to clerical or administrative causes, i.e., failure to calendar deadlines, calendaring incorrectly, etc. Dabbling in unknown or little-known areas of practice is one of the most common causes for a claim when the attorney’s lack of knowledge is the reason an error is made.