Legal Malpractice Forum
| Publication year | 1980 |
| Pages | 90 |
1980, January, Pg. 90. Legal Malpractice Forum
A considerable amount of attention has been focused on the litigator's exposure to malpractice claims. Tremendous emphasis has been placed on, and directed toward, the potential for liability arising out of practice in such specialized areas of the law as tax, securities, bankruptcy and estates. Consequently, it is facilitating for the general practitioner to be lulled into a false sence of security and a resultant attitude of insulation from a malpractice claim. The general commercial law practitioner who never finds himself in court (except, perhaps, as a defendant in a minor traffic matter) and who does not purport to enjoy an expertise in a technical specialty has distinct concerns of his own.
Canon 6 of the Code of Professional Responsibility admonishes us to represent our clients competently.(fn1) This often mandates the general practitioner's association with attorneys or other professionals having a particular specialty(fn2) or, perhaps, the refusal of employment altogether. Ethical Consideration 6-3 of the Code states, in pertinent part, as follows:
. . .a lawyer generally should not accept employment in any area of the law in which he is not qualified. However, he may accept such employment if, in good faith, he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client. Proper preparation and representation may require the association by the lawyer of professionals in other disciplines...(fn3)
The duty owed by an attorney to his client necessitates "such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake."(fn4) Thus, if an attorney does not currently possess such skills and is either unable or unwilling to obtain them, service to the client must be declined or an association with other counsel having such skills must be considered.
An increasingly evident concern arises from the interstate transaction which has become commonplace in our profession. Such involvement compels special care and consideration by the attorney, first, in recognizing the problem and, second, in determining if he is competent to provide a client advice respecting a foreign state's laws. Unfamiliarity with, or ignorance of, statutory requirements resulted in the failure properly to perfect a lien in a foreign state and constituted the basis for a judgment against an attorney in Degen v. Steinbrink.(fn5) In this case, a New York...
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