Did you make a New Year’s resolution to shift gears in your law practice? Maybe start practicing in a new area of the law that is unfamiliar to you? It’s always fine to add new skills, of course, and marketing yourself in new ways can be a good strategy for bringing in more revenue in 2016. But merely dabbling in unfamiliar areas without the proper degree of competence and preparation can spell both disciplinary and malpractice problems.
Many lawyers begin to dabble when business slows down or dries up in an area they have become familiar with. That was common during the last economic downturn. It’s hard to measure the impact of dabbling on the incidence of malpractice complaints, but it seems to be responsible in a measurable way for disciplinary complaints against lawyers who do not prepare themselves adequately to face the challenge of doing a new kind of work.
Here in my Ohio bailiwick, Richard A. Dove, director of the Ohio Supreme Court’s Board of Professional Conduct (the adjudicatory arm of the state’s lawyer discipline system), said “We see several disciplinary cases each year in which lawyers, often due to economic pressures, extend their practice beyond their areas of competence. This includes not only legal competence but competence in the use of technology prevalent in the practice of law.”
Sometimes, a lawyer just becomes disenchanted with the law altogether, and wants a different kind of life.
When you are in over your head
A recent disciplinary case from Kansas helps illustrate some of the issues. There, the lawyer was appointed to handle a federal criminal appeal. She asked for and received three extensions of time to file the Eighth Circuit appellate brief on behalf of her client, but never filed it. She didn’t respond to the court of appeals’ show cause order, or the letters requesting her response in the disciplinary investigation. The Kansas Supreme Court’s opinion and the video of the oral argument provide the backstory.
The lawyer had been a patent and trademark associate in a major firm, but became disenchanted with her practice. She left the firm, and decided to “try her hand” at criminal law. She found it eye-opening, she testified; the case, which she took to trial in federal court, included her client making threats to harm her (he said he had his previous counsel’s fingers broken), and mysterious gunshots fired at her rural home by persons unknown. She testified that even before her client’s trial, she realized that criminal law was not going to be a good fit for her, and she returned to school to become credentialed in another field. She accepted the appointment to handle her client’s appeal while continuing to go to school.
Before the state supreme court, the lawyer admitted her misconduct, and neglect. She said, “I was over my head, and did not seek proper advice about getting another attorney to replace” her in handling the appeal.
The Kansas Supreme Court imposed the discipline the lower board had recommended and the lawyer agreed to: indefinite suspension, retroactive to an earlier administrative suspension for failure to register, which would allow the attorney to petition for reinstatement in September 2016. She testified that she did not plan to practice law in the future. The client ended up being allowed to proceed with the appeal with new counsel.
Shifting gears demands preparation
The comments to Model Rule 1.1 on competence recognize that you can strike out for unfamiliar territory and handle matters without “prior experience.” As lawyers (even new law school graduates), our tool kit includes skills that transcend “any particular specialized knowledge.” However, when working in a “novel field,” you must undertake “necessary study” and preparation. And of course, you can also provide competent representation by associating — or at least getting advice from — another lawyer who is already competent in the new field. The resources are out there — our duty of competence requires that we use them when we embark on new paths.