Dabbling is risky. Pressed by economic forces or perhaps the expectations of unreasonable clients, the "dabbler" disregards common sense and strays into areas of the law in which he has little or no experience. For the dabbler, loss prevention is particularly troublesome. Statistically, up to 59% of all losses occur outside a lawyer's or law firm's primary area of practice. But the dabbler risks more than an unsatisfying result or a potential malpractice claim: he puts his law license at risk.

What does a lawyer do when confronted with an engagement that requires legal knowledge, skill and thoroughness beyond the lawyer's competence? Must a lawyer refuse business in unfamiliar areas, or can he or she limit prospective malpractice exposure by honestly revealing to the client the lack of competence? Can a lawyer ask a client to pay for the lawyer's learning curve? And is there any way to satisfy the lawyer's professional growth and loss prevention and ethical concerns when dabbling in an unfamiliar area?

Fortunately, there is a simple formula for the dabbler. First, the dabbler must recognize his limitations. Once this is accomplished, he has four options. He may either refuse the case, refer the case, associate with competent counsel, or become competent. Choosing the best option for loss prevention requires some basic understanding of standards of practice and ethics. These are discussed below.

It is over-simplification to say that the acceptance or rejection of a new matter is completely within the dabbler's control. It is as common for the lawyer who dabbles to be lured by the prospect of the economic benefit as it is for an unreasonable or unrelenting client to push the lawyer across the confessed line of his legal knowledge and skill. Of course, loss prevention requires that the lawyer resist both temptations. The process of resistance begins with a critical survey of the client's expectations and the lawyer's ability to fill them at the initial intake.

The Intake
It should not be forgotten that the first rule of the ABA Model Code of Professional Responsibility commands that a lawyer provide competent representation. Competent representation requires the legal knowledge, skill and thoroughness and preparation necessary for the representation. The rule clearly prohibits a lawyer from undertaking representations in an area in which the lawyer knows or reasonably should know that he is not competent to provide representation. Any lawyer with experience in the area of malpractice law recognizes that the Model Rules are admitted in most jurisdictions as evidence of the standard of care. In other words, as evidence of the standards of legal malpractice. Thus, the starting point for loss prevention is awareness of the ethical rules.

At the initial client intake, any lawyer must make a critical assessment of his or her competence in the legal area and must be prepared to decline the case or select one of the other ethical options discussed below. The lawyer should not only consider the complexity or area of law but should also question whether the case is simply too big for his practice and whether it conflicts with the needs of his other clients. In addition, ethics and loss prevention require that the lawyer fairly communicate the extent of his experience and knowledge. He cannot allow an unjustified expectation. Likewise, the client with unreasonable expectations should either be adjusted to reality or effectively screened.

This creates a dilemma for the dabbler. If he openly admits his lack of expertise and knowledge but accepts the case, he has most likely made a prima facie case for attorney malpractice should the representation be unsatisfactory. Fortunately, under the Model Rules, there are satisfactory alternatives that promote loss prevention. For example, the dabbler can associate with competent counsel.

Association with Competent Counsel
The same Model Rule that mandates competence permits a less skilled lawyer to associate with another lawyer who is competent to provide thorough representation. Thus, the dabbler's loss prevention and bottom line can both be more reasonably assured through simple association with competent counsel. Of course, this requires sensitivity to other rules that do not permit a lawyer representing a client to delegate responsibility for the case to a lawyer outside the firm, without the client's consent. Key to association with competent counsel, therefore, is disclosure. This disclosure should also include disclosure of the bases of all fees in accordance with Model Rule 1.5.

For the dabbler who does not wish to associate with other counsel, but who would like to retain an interest in the fee, the next option is referral.

Referral
Model Rule 1.5 recognizes that a lawyer may wish to keep the economic benefit of producing a client and not wish to perform services or assume shared responsibility for the management of the case. Where such a division of fees is permitted, a dabbler who receives a case may, with full disclosure to the client, forward the matter to a competent receiving lawyer. However, the receiving lawyer must disclose that the referring lawyer has received or will receive economic benefit from the referral, and the extent and basis of such economic benefit. Moreover, the referring lawyer must agree to assume the same legal responsibility for the performance of the services as would a partner of the receiving lawyer. In terms of loss prevention, the forwarding lawyer is the partner of the receiving lawyer for malpractice liability. Thus, forwarding to a competent lawyer is absolutely critical.

On this subject, the dabbler should also be aware of recent case developments, particularly in California, which have held a lawyer liable for malpractice for not referring his client to a specialist where a reasonably diligent practitioner would do so under similar circumstances. This expansion of a "duty to refer" is rooted by analogy to the law pertaining to general practitioners in medicine.

While this extension of duty appears to contradict traditionally held notions of the lawyer as a generalist, not subject to the limitations of a specialist, it does underscore the need for critical self-appraisal in the decision to refer - or not to refer, taking into consideration the level of skill of the receiving lawyer along with the complexity of the client's case. Because the practice of law in most states is not yet divided into discrete areas of specialization, the concept of a "duty to refer" still bears consideration in loss prevention as principles of attorney malpractice continue to be redefined. In today's legal climate, when in doubt, the dabbler must consider referral.

But this is not the only solution as the dabbler, too, can become an expert.

Become Competent
Many situations can be envisioned where the lawyer is resolute and does not wish to part with the opportunity to learn an unfamiliar legal area and to continue to serve his client. From a loss prevention standpoint, it is a high risk venture. Will the lawyer succeed in gaining the competence in the new area? Will the lawyer have time and resources to gain the knowledge in a manner compatible with the client's goals? This is, above all, the time for honest self-appraisal in light of the client's objectives and legal complexities. Several factors should be considered.

First, it will be necessary to advise the client of the lawyer's lack of expertise. Under ethical rules, the lawyer cannot limit his liability to his client. Under loss prevention standards, it is hard to imagine more compelling evidence of malpractice than the lawyer's own admission of his lack of knowledge and skill. It may become apparent that it is impossible for the dabbler to limit his ethical exposure in any practical manner.

While Model Rule 1.2(c) allows a lawyer to limit the objectives of the representation if a client consents after disclosure, the lawyer will require verification, most likely a written confirmation of the limitation and consent. A lawyer's oral limitation on the scope of representation is all but worthless as malpractice evidence, since the dabbler's words can and will be misquoted by the client at his malpractice trial.

Additionally, an understanding to limit the lawyer's liability to the client under Model Rule 1.8(f) cannot be accomplished in advance unless the agreement is permitted by law, and the client is independently represented by another lawyer in making the agreement. But limiting the representation is not equivalent to limiting exposure to a malpractice suit for lack of knowledge, care and skill. A failed effort will, just the same, net a malpractice claim.

Fee Considerations
The dabbler who toughs it out will need to address the question of fees. Since fee disputes result in a breakdown of relationships, the dabbler must consider whether or not he will charge the client for the extra time required to gain competence in the field. Naturally, the client will not wish to pay for the lawyer's learning curve. Because a lawyer must discuss with the client the basis of fees, this issue too will have to be addressed with the client and will add to the troubling proofs likely to be introduced at the dabbler's subsequent malpractice trial.

Dabbler Beware
In terms of loss prevention and ethical standards, a lawyer who strays from his area of knowledge and skill clearly accepts greater risk potential. There may be good reasons for a lawyer endeavoring to take a case outside of his or her area of expertise. The lawyer may be afraid to lose a valuable client to another attorney or firm. Law firm economics may require that the firm move into new areas of specialization. Perhaps the lawyer's "can do" attitude propels him to acquire new knowledge and experience. After all, we all had to build our knowledge at some time.

If you are deciding to take a case outside of your area, there are a few tips to consider. First, simply disclosing your lack of expertise to the client does not limit your liability if he or she agrees to retain you anyway. Second, such a disclosure, followed by your mishandling of the case, will probably enhance a dissatisfied client's malpractice claim against you. Third, if you have disclosed your lack of expertise to your client and he or she still insists on your handling the matter, you should be suspicious of the client's motives. Ask yourself, "why would a client retain a self-confessed incompetent counsel?" Finally, if you decide to accept new business outside of your firm's area of expertise, and you wish to avoid the unfortunate consequences, you will have to do a competent job and will at least have to associate with competent counsel at the outset to overcome your lack of skill and knowledge.

For the lawyer concerned with loss prevention, the best policy is adherence to Model Rule 1.1. Clearly, loss prevention and competence are synonymous.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.