“Anyone who’s a generalist is committing borderline malpractice,” he said haughty with the constipated indignation of the self-righteous. An Arizona lawyer inexplicably popped off with this utterance at a bar continuing legal education program several years ago. I wonder what he’d say today when the economic recession may be forcing some practitioners into previously uncharted waters where ethical shoals pose danger.
A lawyer I know that used to do mostly mechanics liens and contractor-related litigation is now doing divorces and estate plans. Another lawyer I know, just a couple years out of law school, says there’s no legal problem he’s not willing to take on.
“Extremis malis extrema remedia”.
Anything wrong with that? Well, it was Dirty Harry who once famously said, “A man’s got to know his limitations.” Or in this context, extremis malis extrema remedia. While some may think desperate times call for desperate measures, I disagree. Extreme ills don’t usually justify extreme remedies.
There’s also a lawyer ethical rule on point, which ought to restrain lawyers who think they can dabble in unfamiliar practice areas and get away with it. ER 1.1., “Competence,” states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
The operative word is reasonably. As all the commentators say, reasonable does not mean perfect. It means reasonably competent and diligence as defined by the competence shown by a similarly-situated reasonably prudent lawyer.
In an ABA magazine feature last December, Practice Pitfalls, the writer advises, “If you don’t know it. Don’t do it.” That’s a good general rule of thumb, especially for such complex, fact and law sensitive practice areas like immigration law and water rights.
Still, the Comment to ER 1.1 does provide additional guidance for lawyers to fulfill their duty of competence. First, if they don’t know the area of law, punt. Refer it to someone that does. Second, if they don’t know but want the case, they must acquire the competence through diligent review, study and research. Or third, if they don’t know it and want the case, they have to associate with a competent lawyer that does know that area of law.
The Comment to Ethics Rule 1.1 specifically states that in “determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner.”
Criminal conduct, too?
But some say it’s more than just ethics violations that may be increasing. They’re claiming that the economic recession may be leading to outright criminal conduct. In a version of extreme remedies for extreme ills, an article in a California newspaper claims that according to the California State Bar, the recession is driving some lawyers to not only skirt ethics but to outright crime. Also see “Struggling Lawyers Turn to Crime?”
Whether there’s a factual basis to this is hard to say. One writer in “Do Hard Times Yield Bad Ethics?” says that the “evidence” is anecdotal. One such anecdote I managed to find, is a recent instance of the New Jersey Supreme Court disbarring a lawyer for “involvement in and profiting from a high-priced Manhattan escort-prostitution ring.” See Matter of Committee on Professional Standards v. Bergrin. I don’t think this constitutes a crime spree.
Still the “news” of conniving criminal counselors makes for a saucy headline. But like others, I wonder how much truth there’s to the tale. Indeed, there’s suspicion afoot that as most if not all of the reports of a veritable lawyer crime wave emanate from the same source, the California Bar, that there’s possibly more to the clarion alarm bell.
Are there likely ulterior motives behind the Cal Bar’s eye-catching consumer warning? Is the Bar, still stinging from the governor’s veto at the end of last year, feeling like it has to act even tougher during the current recession to show the state’s leadership it means business?
In his veto message last year, Governor Schwarzzenegger said “the costs of its discipline system have escalated by $12 million from 2004 to 2008 while the number of disciplinary inquiries opened has declined.” The governor’s slapdown was previously reported here at “That time of year again. . .rendering Caesar ….“
My thinking is that other than the usual individual examples of ethical malfeasance that tarnish our profession and, which occur in any economy, there’s not much beyond anecdotes to sustain a supposed lawyer crime wave. It may simply be that the Cal Bar could be just a tad more fiscally compelled to take an even tougher regulatory stance to show the Governator that escalated discipline can belatedly accompany an escalated budget.