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Lawyer incompetence in area of law relevant to client matters

On Behalf of | May 29, 2024 | Attorney Incompetence, Duty of Care, Legal Malpractice |

When a person retains an attorney to represent them, the client reasonably presumes the lawyer has the requisite knowledge, experience and skill in the area of law applicable to their case or other legal matter. When legal counsel does not have the familiarity with the practice area necessary to meet the client’s goals and for which they were hired, if that incapacity harms the client, the client may have a valid claim for legal malpractice.

Duty of care includes capability

An attorney has a duty of care to each client. To define this professional duty in a specific attorney-client relationship, the law considers what level of knowledge and skill an ordinary attorney would possess and exercise to accomplish the legal work the client requests. The level of knowledge needed of course depends on the practice area’s complexity and what the client wants to accomplish.

Mitigation of lack of knowledge

A lawyer should not accept employment in a matter about which they are not knowledgeable or experienced. The incompetence could significantly harm the client and, if appropriate, the lawyer could face allegations of malpractice or negligence.

A lawyer’s inexperience in a practice area may in certain circumstances be remedied to an acceptable level to represent a client if:

  • They have a colleague at their firm who can provide oversight and guidance
  • They bring in co-counsel who has adequate knowledge and skill to represent the client jointly
  • They have the time to study, research and consult to get up to speed before they would have to begin work for the client

Note this third option may not be possible for complex areas of law without having had actual supervision and experience, and it may depend on the jurisdiction’s rules within which they are working.

A lawyer should only undertake these remedial actions with the client’s knowledge and consent and even then, only cautiously. It is probably the better option to refer the potential client to another lawyer who is either a specialist or has extensive experience in the practice area.

Specialized or complex areas of law

In some jurisdictions, a lawyer may refer to themselves as a “specialist” in an area of practice only in some instances. Certain jurisdictions require special certification, examination or experience to receive official permission to use the specialist title, while other jurisdictions regulate it less closely.

In either circumstance, if representation is in a specialized or highly complicated area of law, such as tax, intellectual property, immigration, maritime or admiralty, bankruptcy and others, the duty of care is still that the lawyer must have the knowledge and skill of an ordinary lawyer working within the practice area – but at the elevated level of specialty needed to handle the complexity of such representation.

Seek legal advice about attorney incompetence

Anyone who suspects that they suffered harm because their lawyer did not have adequate experience or knowledge about the area of law relevant to the representation should seek guidance from a legal malpractice lawyer as to whether they may have a malpractice claim.