For lawyers, the desire to help a client can sometimes create a temptation to accept a matter outside the attorney’s usual area of practice. Perhaps it involves a longtime client who does not want to hire someone else. Maybe the case appears straightforward. Or perhaps the lawyer simply thinks, “I can figure this out.”
Sometimes a lawyer can do just that – develop the requisite competence to practice the case or handle the matter. Indeed, the Kentucky Rules of Professional Conduct do not require years of experience in a particular field before accepting a matter. But there is an important difference between developing competence in a new area and dabbling in an unfamiliar area without appreciating its complexity, deadlines, or procedural traps.
From a risk-management perspective, that distinction can be the difference between successfully expanding a practice and creating a malpractice claim.
Competence Is an Ethical Obligation
The starting point is SCR 3.130(1.1):
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Competence does not mean a lawyer must already be an expert in every matter accepted. The comments to Rule 1.1 recognize that the necessary level of proficiency depends on factors such as the complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s experience in the field, the preparation and study the lawyer can devote to the matter, and whether it is feasible to refer the matter to—or associate or consult with—a lawyer of established competence in the field.
The real danger, therefore, is not simply encountering an unfamiliar legal issue. Lawyers do that every day. The danger is failing to recognize what you do not know.
A seemingly straightforward matter may involve an unfamiliar statute of limitations, administrative prerequisite, statutory notice requirement, jurisdictional issue, damages provision, fee-shifting statute, or specialized procedural rule. By the time an attorney discovers the issue, the client’s rights may already have been compromised.
FDCPA Claims: A Current Risk-Management Example
Lawyers Mutual has recently seen an uptick in claims involving the Fair Debt Collection Practices Act (“FDCPA”), including matters handled by attorneys with little or no experience practicing in this area. The risk seems to be that dabbling attorneys would not be aware of the statutory requirements for what would otherwise be ordinary aspects of civil litigation. For example, a demand letter or other contact with the opposing party must satisfy Supreme Court Rules like 4.1 and 4.3. Those requirements (and others) are baked into a typical demand letter. Not so, with FDPCA requirements like mini-Miranda warnings for initial and subsequent communications. Unfortunately, there are too many FDCPA quirks to be able to capture every liability risk a dabbling attorney could unknowingly face. It’s a sprawling federal statutory scheme with decades of amendment by Congress and interpretation by state and federal courts. Much like, say, HIPAA.
So, perhaps the takeaway for insureds who are considering collections work is this: Consider the preparation you would undertake to advise a hospital system on whether it can release specific protected health information. You need to understand deeply the statute, published and unpublished case law nationwide, the relevant regs, enforcement actions, etc. So too with debt collection actions: It's not the ice above the water that sinks the ship, but the 90% that exists beneath the surface.
Finally, when it comes to dabbling, within the past couple of years LMICK has seen more-and-more smaller law firms and solo practitioners take on debt collection work for "longtime clients," because there is the fear that if the "longtime client" has to go elsewhere for the debt collection work, maybe the "longtime work" will also go somewhere else. The answer to this rather sticky predicament and Supreme Court Rule 1.1 concerns is to co-counsel and share fees with a competent debt collection attorney; after all, there are no additional costs to the client.
The lesson is not limited to FDCPA cases, however. Similar risks exist whenever lawyers venture into unfamiliar areas such as bankruptcy, immigration, tax, intellectual property, probate, employment law, securities, appellate practice, or specialized federal statutory claims.
Competence Does Not Stand Alone
A failure to adequately understand a matter can also implicate other Kentucky Rules of Professional Conduct.
SCR 3.130(1.3) requires reasonable diligence and promptness. Spending weeks trying to learn an unfamiliar practice area while an important deadline approaches can turn a competence problem into a diligence problem.
SCR 3.130(1.4) requires appropriate communication with the client. If an attorney discovers that a matter involves issues beyond the attorney’s current competence, the lawyer should consider whether the client needs to be informed so that the client can make appropriate decisions about consultation, association of additional counsel, or other representation.
Finally, SCR 3.130(1.16) should be considered when a lawyer cannot competently continue the representation. But withdrawal is not a substitute for proper case screening. Waiting until a deadline is approaching—or until an error has already occurred—may leave both the client and the lawyer in a difficult position.
Know When to Learn, Associate, or Refer
Rule 1.1 should not discourage Kentucky lawyers from expanding their practices. Lawyers can develop competence through focused research, CLE programs, consultation with experienced practitioners, mentorship, or association with counsel who regularly handles the particular type of matter.
The critical question is whether the attorney can acquire the necessary competence before the client’s interests are placed at risk.
Good risk management therefore begins at intake. When a matter falls outside the lawyer’s normal practice, stop and evaluate it before signing an engagement agreement. Identify the governing law and deadlines. Determine whether specialized procedures apply. Consider whether you have sufficient time to become competent. When appropriate, consult or associate experienced counsel.
And sometimes the safest and most professional response is simply: “This is outside my practice area, and I think you would be better served by an attorney who regularly handles these matters.”
There is no professional shortcoming in making that decision. Recognizing the limits of one’s knowledge can itself be an important part of competent representation.
BEFORE YOU TAKE THAT CASE: 10-QUESTION COMPETENCY CHECKLIST
Before accepting a matter outside your normal practice area, ask:
- Do I understand the governing substantive law?
Can I identify the controlling statutes, regulations, cases, claims, and defenses? - Have I independently identified the applicable statute of limitations and other deadlines?
Never assume the deadlines resemble those in your usual practice area. - Are there specialized procedural requirements?
Consider administrative exhaustion, notices, jurisdiction, venue, pleading requirements, and prerequisites to suit. - Do I understand the potential remedies and exposure?
Identify damages, statutory damages, attorney-fee provisions, penalties, and other consequences. - Have I handled this type of matter before?
If not, determine how significant the learning curve will be. - Can I become competent before any deadline or client interest is jeopardized?
Having the ability to learn the law eventually is not enough. - Am I relying too heavily on my general litigation experience?
Familiar procedures can create false confidence when specialized law applies. - Should I consult or associate experienced counsel?
A lawyer who regularly practices in the field may quickly identify issues you have not considered. - Have I adequately explained any limitations or concerns to the client?
Give the client the information reasonably necessary to make informed decisions about the representation.
Would referring the matter be better for the client?
If the answer is yes, make the referral before accepting responsibility for the case.
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