All lawyers have their comfort zones of practice.
Accepting a case matter outside that zone is not only risky to the lawyer, but it’s also unfair to the client.
The ethics rules require a baseline of competence before accepting a case. Some lawyers have practice niches that serve a specific clientele. Other are certified specialists. Even those with general practices have expertise in some areas but not others.
Problems arise when lawyers stray from their sweet spots and dabble, which the dictionary defines as “taking part in an activity in a casual or superficial way.” Doing so increases the odds of a mistake, which can lead to a malpractice claim or bar grievance.
Risk Management Note: In June, Alta Pro presented a webinar on Client Relations featuring ethics expert James Bell, who warned about the dangers of dabbling and gave specific tips for avoiding trouble. If you missed the webinar, it’s available free and on demand on the Alta Pro YouTube channel. Here is a link where you can watch it at your convenience.
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Risk Management Tips on How to Avoid Dabbling
- Review the rules of professional conduct. ABA Model Rule 1.1 says you should not represent a client without sufficient “knowledge, skill, thoroughness and preparation.”
- Be candid. Tell the client what areas you’re experienced in. If their case falls outside this zone but you want to take it anyway, explain your plan to get up to speed. Then let them decide whether or not to retain you.
- Associate co-counsel. You don’t necessarily have to decline the case or refer the client elsewhere. You can bring in an experienced attorney or consultant to help. A retired lawyer may be perfect. Make sure the client agrees to the arrangement, including how case responsibilities and fees will be divided. Get their consent in writing.
- Educate yourself. If you’ve never handled a complex divorce before, you may not know what discovery to conduct or even what a good outcome would be. Do what it takes – attending CLE, acquiring a mentor, joining a bar association section – to acquire the necessary skills. Don’t bill the client for your time and expense doing so.
- Add an experienced lawyer to your firm. If you’ve been thinking about expanding into this area, recruit a lawyer who can bring expertise from day one.
- Don’t accept a case to accommodate a friend or relative. You’re doing nobody a favor by stepping into uncharted territory.
- Don’t let your inexperience hurt your client. Opposing counsel will know your reputation and background. They may try to leverage your lack of experience in settling or resolving the matter. It’s one thing to handle a slip and fall with minimal injuries; it’s another thing to litigate a complicated products liability or wrongful death case.
- Withdraw if necessary. If you find yourself in over your head, withdrawing from representation might be required. Don’t do anything to prejudice the client. Get court permission when required.
- Just say no. This can be hard to do. Don’t make it personal. Explain that you lack the time, experience or resources to handle the case – and that someone else would be better for the job.
The Bottom Line: Avoid a malpractice and ethical minefield by sticking to what you know and are good at.
If you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan, you can stay on top of ethics and risk management news by being a member of Alta Pro Lawyers RPG. You’ll get access to free webinars, the Pro Practice Playbook, Reminger ProLink, Ask the Risk Pro and more. Here’s how to join.