Dangers of Providing Advice Outside of Your Expertise
Today’s lesson: stick with what you know. Clients may ask their commercial litigator for an assist with their cousin’s DUI. An estate attorney may feel inclined to advise a longstanding client about a trademark application. It is not uncommon for clients to seek input from their attorneys irrespective of whether the advice falls well outside of the attorney’s area of expertise. As a recent New Jersey case illustrates, the attorney’s best bet may be to refer the client elsewhere.
In the subject case, a solo practitioner was contacted by an existing client who had been arrested after his auto repair shop was raided during a narcotics investigation. Their previous attorney-client relationship involved business-related issues; the attorney had no experience with criminal matters. The client advised that he had no knowledge of the alleged drug transactions and the attorney advised him to cooperate. The attorney claimed he had consulted with a criminal defense attorney before giving this advice, and also advised the client that he was not a criminal lawyer.
Ultimately, the client negotiated an agreement whereby he testified against co-defendants and was sentenced to prison and probation. The client then sued his original attorney, claiming his prison sentence was due to his attorney’s recommendation to cooperate with law enforcement.
The Superior Court dismissed the case, finding the client did not show that he was exonerated, as is required in order to establish a claim for legal malpractice in a criminal case. The appellate court affirmed. The Supreme Court declined to hear the case.
Though the attorney avoided liability, the case is a reminder that it is important for attorneys to know their limits. The next time you get a call from a client about an unfamiliar issue or area of law, keep the following in mind:
- Be blunt. Don’t be afraid to say “I don’t know, but I can find someone who does”. The law is a collaborative profession. You will better serve your client by putting them into the hands of an expert than to attempt to take on an unfamiliar issue yourself. Though the Model Rules require competence and note that this can be attained through preparation and study, expertise in a particular field may be required in some circumstances. The Rules do not note what these circumstances are, so when faced with a question about an area of law that is new to you, ask yourself if you are more comfortable with taking it on yourself, or referring the matter to a lawyer with experience with that area of law.
- Enlist an expert. The Rules also note that “competent representation” can be provided by associating with a lawyer of established competence in the unfamiliar field. Tell your client you are referring the case to another attorney, and explain why. It is likely your client will be grateful that you are connecting them with a specialist.
- Stay silent. Representing that you are competent in an area of law in which you have no experience could also run afoul of the Model Rules’ prohibition against false or misleading communications about you or your services. Further, in the criminal area, faulty advice, even if it doesn’t amount to malpractice, may qualify as ineffective assistance of counsel.