The practice of law touches every aspect of human life – from personal affairs to business matters to issues of loss, injury and death. It would be impossible for any one lawyer to have in-depth knowledge of every type of legal service.
Some types of law are so intricate that many attorneys choose to concentrate their practices on one subject to grow their understanding and familiarity with the substantive law and procedural requirements. The better they know the law in an area, the less likely they are to make mistakes and the better they can serve clients.
For example, complicated areas of practice thought of as specialties include taxation, securities, maritime and admiralty, immigration, bankruptcy, intellectual property, criminal and others – but every area of law has some complexity and requires an attorney to have particularized knowledge and perform certain tasks.
We have written posts about an attorney’s duty of care toward their client in the course of the legal work performed for them. For example, we have explained that a lawyer’s professional duty of care is that of a reasonable, ordinary attorney with the skill and knowledge needed for competent representation in the matter for which they were retained.
Specialization and the duty of care
The duty of care becomes more nuanced when a lawyer practices in a highly complex area – one in which an “ordinary” attorney could not competently practice without further training or the oversight of more experienced counsel. Generally, the standard of care to which the law holds a lawyer is that of an ordinary lawyer who practices regularly in that area of law.
As Ronald Mallen writes in his treatise Legal Malpractice, “Specialization is significant for the standard of care.” He goes on to describe a case wherein the court noted that “the standard of care should encompass a higher degree of care and skill for legal specialists.” The duty of care involving a specialist is not that of an ordinary, general practitioner but that of an ordinary specialist within that area.
Rather than take on representation in a specialty area outside of the attorney’s competence, some cases say that the lawyer should refer the case to another lawyer competent in the specialty or if they take the case, consult a specialist for assistance.
Florida legal specialization issues
Resolution Trust Corp. v. Holland & Knight is a federal case interpreting Florida law often quoted for its language about an attorney’s duty of care, which “requires an attorney to have the knowledge and skill necessary to confront the circumstances of each case.”
In other words, the legal knowledge and skill required to meet the duty of care vary depending on the particular legal matter – it would be different in a tax audit than in a medical malpractice lawsuit, patent filing or deportation hearing.
Florida like some other states has an attorney certification program. The Florida Bar administers the program in which a lawyer voluntarily goes through rigorous review and testing to achieve public certification as a specialist in an area of law. A certified specialist holds themself out as an expert in an area of law and would be expected to adhere to the duty of care of an ordinary specialist in that subject. But a Florida lawyer could practice primarily within an area of law without certification and be held to the standard of a specialist as defined by the matter in which they agreed to represent the client.