Does the new year have you thinking about taking on work in a new practice area? Maybe business in your accustomed area is slowing, and you’re considering shifting gears. If so, beware of dabbling in areas where you don’t have the requisite knowledge and skill to provide competent representation to your client.
The ethical duty of competence — Model Rule 1.1 — is the first rule in the rule book for a reason: without competence, fulfilling your other ethical duties is meaningless. A couple of recent cautionary tales shine a light on how lawyers can get it wrong.
Step carefully into specialized areas
One way lawyers get in trouble is in overestimating their ability to deal with the ins and outs of a specialized area that they may not be familiar with.
That might have been the problem in a recent District of Columbia Court of Appeals case. The lawyer represented the client in post-conviction and immigration proceedings. The client was at risk for deportation on the premise that he had been convicted of an “aggravated felony” as defined under the federal immigration statute.
The lawyer made several missteps in trying to forestall the client’s removal. Initially, he petitioned the state circuit court to vacate the conviction and guilty plea, based on the mistaken claim that the court had failed to advise the client about the potential immigration consequences of the conviction. Then, the lawyer dismissed the petition, conceded removability before the immigration court, and did not try to challenge or delay the client’s deportation on any other ground.
Ultimately, the client got new counsel, who successfully argued against removal on the ground that the burglary offense he was convicted of was not an “aggravated felony” within the meaning of the immigration statute. That appears to be something that a practitioner in the immigration area might have known, but which might not have occurred to someone not well-versed in the specialized world of immigration law.
The lawyer admitted to violating D.C.’s version of Rule 1.1, and was suspended for 30 days with one year probation. The probation conditions included the requirement that he join an immigration lawyers’ association and attend 10 hours of CLE pertaining to immigration law.
Get help when needed
Another danger is trying to go it alone, and failing to get help when needed. When you don’t know how to proceed, talk to a colleague; call the bar association to identify the head of a committee or section in the relevant area; reach out to the relevant lawyers’ group; look for resources on-line — just don’t isolate yourself.
Help like that might have aided a Louisiana lawyer who acknowledged that his primary area of expertise was criminal law. He accepted representation in a civil case involving a school’s discipline of a student, and proceeded to file suit against the wrong parties. The court extended time to cure the problem, but the lawyer didn’t amend the petition or file anything else in the case.
In its opinion suspending the lawyer for a year and a day, the Louisiana Supreme Court noted that the lawyer did not appear to understand the complexities of civil law practice and procedure. He acknowledged that he didn’t properly research the case law for this type of claim and filed suit against the wrong parties.
Keep calm and learn on…
None of this means that you can’t move into new areas or deal with issues that are initially unfamiliar to you. As comment  to Rule 1.1 explains, “the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.”
Be assured, says the comment, that you can “provide adequate representation in a wholly novel field through necessary study” — you just have to recognize what you don’t know, and come up to speed on it.