Many of us have adopted and adapted Rick Friedman and Patrick Malone’s seminal Rules of the Road™ concepts for preparing and trying our tort cases1. In this article, I borrow the “Rules of the Road” metaphor to examine how we may better protect our clients and ourselves by both managing our practices and preventing legal malpractice claims. You have heard or read much of what follows before; none of it is new. However, from time to time it is helpful to remind ourselves of the basics of malpractice prevention and its corollary, client protection. Just as airline pilots review pre-flight checklists before every flight even though they have gone through the routine hundreds of times, it is helpful for experienced trial lawyers to review risk management checklists to remind us to do those things that we need to do to protect our firms and our reputations and, most importantly, to protect our clients.
The wonderful thing about the Rules of the Road for malpractice prevention is that we can implement most of these basic risk management techniques by doing what we should be doing anyway: by placing our clients’ interests ahead of our own. Not coincidentally, many of these Rules track the ABA Model Rules of Professional Conduct, the primary focus of which is client protection.
I developed this evolving list from my experience as a plaintiff’s lawyer who regularly brings professional negligence claims against lawyers from around the country. Moreover, in a past professional life, I was a legal malpractice defense counsel and represented many dozens of lawyers in malpractice cases. The lawyers’ mistakes that I saw as defendant’s counsel were not significantly different from the mistakes I now see as plaintiff’s counsel. The technology may have changed, and the “hot” practice areas where claims arise may be different, but humans being human, the mistakes tend to be the same.
Rule of the Road No. 1: A trial lawyer must be competent.
Most of us has either taken on (or been tempted to take on) a new client whose legal problem is outside our area of expertise. Because trial lawyers tend to be ambitious, Type-A people, most of us find ourselves drawn to novel and interesting practice areas, and we readily embrace new challenges.
However, our ambition and egos can be our downfall. Even the best lawyers can find themselves in professional quicksand if we stray outside our area of expertise or accept new clients who, in our guts, we know we should not accept. There is nothing wrong with a lawyer wanting to broaden and deepen his or her legal knowledge and experience. However, we should never do so at our client’s expense. Thus, in the immortal words of Clint Eastwood, “A [trial lawyer]’s got to know his limitations.”2
Rule 1.1 of the ABA Model Rules of Professional Conduct requires us to be competent in our representation of our clients and to be cognizant of our limitations:
RULE 1.1 COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Almost every area of legal practice has its nuances and traps for the unwary, regardless of whether the practice area is simple and mundane or technical and glamorous. It is incumbent upon us to exercise a little humility; we must recognize that we may not know what we don’t know – and that is when we are particularly dangerous to ourselves and to our clients.
My partners and I repeatedly see lawyers fall into trouble when i) the lawyers take on a matter that is beyond their expertise, ii) the lawyers don’t realize their limitations, and iii) they fail to ask for help from experienced lawyers who have the expertise. Sometimes the lawyers accept the representation out of a genuine desire to help the client. Sometimes the lawyers accept the representation out of a desire to expand his or her practice area and a genuine interest in the subject matter. Both are honorable reasons.
Too often, however, we find that defendant lawyers have stepped into the quicksand of incompetence for less honorable reasons, such as the following:
• Greed. The lawyers desire to keep the client’s business and fees to themselves, and don’t associate with other counsel because they don’t want to share the fee;
• Fear. The lawyers fear that if they refer the matter to another lawyer, the client will like the other lawyer better and the referring lawyer will lose the client;
• Arrogance. The lawyers are dismissive of the unfamiliar practice area, believing that they are as fully capable of handling the matter as any competitor, and without acknowledging that other lawyers, in fact, may have more expertise; and
• Ignorance. The lawyers don’t know what they don’t know. Most areas of law practice – even those areas that appear simple or straightforward – have nuances and hidden traps for the unwary, and the lawyers don’t realize the true complexity of the matter.
Sometimes the defendant lawyer’s reasons are a confused mixture of honorable and dishonorable reasons. All of us are vulnerable to these human failings.
What can we do if we want to take a case in an unfamiliar area of law? What follows is list of things we can do to protect our clients and ourselves when asked to take on a matter in which we don’t have the experience or qualifications:
Don’t Dabble. Don’t dabble in unfamiliar practice areas – dabbling generally leads to disaster. When we dabble, we are at extreme risk for making a case-critical mistake. Moreover, we will almost certainly run afoul of Rule 1.1.
Recognize our Limitations. We should have enough humility to recognize our limitations. If we listen to that small voice in each of us that tells us when we are about to do something foolish, we will take steps to protect the client. We will swallow our pride and admit that we are not going to be good at everything.
Learn all that we can learn. Once we’ve decided to take the matter, we should learn all that we can learn about the new area of the law. Read the available treatises; use the treatises to find, read and thoroughly digest the leading cases in the area of law. Determine what statutes apply, and thoroughly analyze the statutes and the cases interpreting the statutes. Research whether any important cases have been reversed or overruled, and determine whether the pertinent statutes have been amended. Look for the articles on the topic in the state and local bar association journals, or the journals of national organizations to which we may belong. Join the bar association committees that focus on the area of law. Look at the committees’ web sites for relevant articles. In short, learn from those who have gone before us. It is often helpful to obtain back issues of the leading journals in the practice area. Read the pertinent articles and maintain a “rip & read” file for the new practice area.
Ask for Help. Finally, take advantage of the resources within the local bar associations and associate with a lawyer experienced in the new area of law from whom we can learn and who can keep us out of trouble. There will likely be nuances in the practice area about which we will be unaware regardless of how carefully we study the cases, statutes or treatises. Associating with an experienced lawyer can help us avoid those traps.
1. Rick Friedman & Patrick Malone, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, Second Ed. (Trial Works, 2010).
2. Clint Eastwood, in “Magnum Force (1973).