As any attorney practicing law knows, each new case brings its own unique issues and problems. Frequently, these issues spill into specialized areas of law that the attorney may not be familiar with, but that must be visited to properly represent the client’s interests. Can an attorney provide competent representation herself on these issues, or is outside legal advice needed?
The Professional Rules of Conduct state that an attorney shall not fail to perform legal services with competence. (Prof. Cond. Rules, rule 3-110 (A).) Competence in performing legal services means the diligence, learning and skill, and mental, emotional, and physical ability necessary. (Rule 3-110 (B).) The rules further provide that an attorney unable to perform legal services competently may nonetheless continue with the representation and meet the requisite level of competency by associating or consulting with another lawyer reasonably believed to be competent, or by acquiring the skill and knowledge that is required. (Rule 3-110(C).)
When practicing outside their typical practice area, attorneys should always be mindful that specialized areas of law generally take special skill and knowledge by an attorney trained in the area. An attorney may breach her duty of competency by practicing in an area in which she does not have the requisite knowledge to provide skillful representation if she fails to receive assistance from an another attorney. Depending upon the complexity of the issue, an attorney may be able to acquire the skill and knowledge required to complete the representation. However, some issues may be too specialized or complex for an attorney to obtain the depth of knowledge to become competent. For example, an attorney offering probate or estate representation may at times encounter complicated taxation issues outside her scope of knowledge. Obtaining the knowledge necessary would be extremely difficult due to the complexity of tax law, and the risk of providing incorrect legal advice is high. To comply with the rule, the attorney should either consult or associate a skillful tax attorney.
Attorneys should be also be cognizant that the rules require association or consultation with an outside attorney “reasonably believed to be competent.” (Rule 3-110(C).) While the rule only requires the attorney to have a reasonable belief in the competency of her co-counsel, potential risk of malpractice claims arise from a failure to ensure the associating attorney has the degree of skill and knowledge necessary. Attorneys bringing in co-counsel or consulting new attorneys with whom they do not have personal knowledge of should always perform background investigations to ensure the attorney has the skill set claimed.
When an attorney associates an attorney on a case, the original attorney remains responsible to the client and has a duty to supervise the associated attorney and ensure the case is handled appropriately. For example, in Moore v. State Bar (1964) 62 Cal. 2D 74, an attorney was disciplined for failing to supervise a co-counsel after a default was entered against the client when the co-counsel did not file a response. An attorney may protect herself from claims of malpractice by keeping careful record of each attorney consulted and the reason for the consultation.
Once an attorney decides upon a co-counsel or consulting attorney, she must make full disclosure to the client and obtain the client’s consent for any fee sharing agreement. (Rule 2-200(A)(1).) Additionally, the fee charged to the client cannot increase as a result of the association or consultation. (Rule 2-200(A)(2).)
While each and every case is different and presents new and unique questions of law, attorneys should not mistakenly believe that they are capable of handling every case alone. A wise attorney will acknowledge issues beyond her knowledge base and outside her scope and take the opportunity to associate co-counsel or consult with experienced counsel. Not only will she avoid breaching the rules of professional responsibility and potential malpractice claims, but she will gain knowledge from experienced counsel as well, which is priceless.
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