A lawyer may take a case that he would otherwise never consider taking as a favor for a family member, because the friend doesn't know any other lawyer (who will handle the matter for free) or because a client just wants him to help his child get 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 your 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 over 50% 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 that, 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 a dabbler in a personal injury case may know the statute of limitations for such cases, he may not be aware of a much shorter notice requirement, and it may not even occur to him that he 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 it is 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. 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 (CTA). 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 for the results of his having dabbled 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).

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 the 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.

Another inexperienced lawyer agreed to probate whatever estates were necessary to establish his client, Ann, as record titleholder to certain real property. The lawyer incorrectly probated the grandmother's estate as though she were predeceased by both her son and his wife, when in reality she only predeceased the son. In the resulting disciplinary proceeding, he was found to have incompetently handled the matter. The court noted that inexperienced lawyers may become competent through study and investigation, as long as such preparation does not result in unreasonable delay or expense to his client. Florida Bar v. Glick, 397 So.2d 1140 (Fla. 1981)

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 he 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 he 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 he is not qualified unless he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his 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 you may be held jointly liable. If you refer the case to another lawyer and are paid a referral fee, consider the fact that, in states that allow the payment of referral fees, most require that the referring lawyer remain responsible for the case as if he were the partner of the receiving lawyer. Again, this could subject you to liability for the other lawyer's malpractice.

Conclusion

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 that are required to become competent and 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.