By Michael Foy
Today’s attorneys practice in an era of ever-increasing legal specialization. The trend towards legal specialization began shortly after World War II and gained traction in the 1970s when California and Texas began certifying specialists in specific areas of law. In recent years, this trend has continued: in 1995 there were 19,547 certified attorney specialists and by 2009 that number had nearly doubled to 35,453. See Am. Bar Ass’n, 2010 Roundtable on Lawyer Specialty Certification: Lawyer Specialty Certification by the Numbers. Specialization raises an important ethical question for an attorney confronted with a matter outside his or her areas of expertise: does the ethical duty to provide competent representation require that the attorney decline the representation?
The answer to this question is unclear. On the one hand, “a lawyer may be disciplined for representing a client in a field in which the attorney has no experience and without associating or consulting a sufficiently experienced attorney.” Ctr. Found. v. Chi. Ins. Co., 227 Cal. App. 3d 547, 557 n.7 (1991). On the other hand, courts recognize that “[n]ot all specialized areas of law are occupied exclusively by specialists,” Torres v. INS, 144 F.3d 472, 475 (7th Cir. 1988), and the ABA’s Model Rules of Professional Conduct note that lawyers may acquire through self-study the knowledge necessary to represent clients in a specialized legal area.
General practitioners—as well as new attorneys and specialists who wish to accept matters outside their specialty—therefore face uncertainty as to when they must refer clients to a specialist. The Model Rules of Professional Conduct and relevant judicial decisions suggest three broad categories into which an attorney might fall: (1) the attorney is able to fulfill the duty of competence with his or her present knowledge and experience; (2) the attorney does not presently meet the duty of competence, but could attain competence through self-study; and (3) the attorney cannot acquire the requisite competence through self-study and must refer the client to a specialist. The lines that separate these categories are also not clear.
The Duty of Competence
Rule 1.1 of the Model Rules of Professional Conduct requires attorneys to provide “competent representation” to their clients. Competent representation requires that an attorney possess the legal knowledge necessary for the representation. Moreover, Comment 2 to Rule 1.1 explains that “[e]xpertise in a particular field of law may be required in some circumstances.” Rule 1.1, therefore, seems at first glance to require an attorney to decline the representation if he or she lacks adequate legal knowledge in the specific area of law. But the comments that accompany Rule 1.1 suggest otherwise. Comment 2 notes that “[a] lawyer can provide adequate representation in a wholly novel field through necessary study.” Interestingly, Comment 2 lists association of a specialist as one way for an inexperienced attorney to fulfill his or her duty of competence, but stops short of stating that the attorney is required to associate a specialist. Comment 2 also explains that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.” Although this comment seems to authorize forays by non-specialists into specialized areas of law, the drafters suggest that there are some cases where experience is essential for competent representation by hedging Comment 2 with the word “necessarily.”
Comment 4 explains that an attorney may accept a representation so long as “the requisite level of competence can be achieved by reasonable preparation.” While Comment 4 endorses self-preparation as a means for attorneys to achieve competence, the drafters’ use of the word “reasonable” connotes that in certain situations the preparation necessary to achieve competence could be so arduous that it becomes unreasonable. In short, Model Rule 1.1 suggests that in some cases that involve specialized areas of law, non-specialists can fulfill the duty of competence through self-preparation, while in other cases involvement of a specialist is necessary.
Case Law Regarding the Duty to Refer
Case law offers some guidance, but ultimately falls short of providing a coherent standard.
The leading case is Horne v. Peckham, in which Horne sought attorney Peckham’s assistance in creating a “Clifford Trust” to minimize tax liability for income earned through his small business. 97 Cal. App. 3d 404, 407 (1979). The trust that Peckham created for Horne was ineffective as a tax shelter, and as a result Horne suffered substantial tax liability. Horne brought a malpractice action against Peckham. The trial court instructed the jury that, as a general practitioner, Peckham had a duty “to refer [Horne] to a specialist or recommend the assistance of a specialist if under the circumstances a reasonably careful and skillful practitioner would do so.” Id. at 414. The California Court of Appeal upheld this instruction, reasoning that in “jurisdictions which recognize specialties[,]…taxation is one of the areas of law most commonly acknowledged.” Id. at 415. The court was unpersuaded by Peckham’s argument that California did not recognize specialties at the time of Peckham’s negligence. Rather, the court reasoned that many lawyers specialized in tax law at the time, and that tax law was commonly acknowledged as a specialty.
Cases in other jurisdictions have mirrored Horne’s emphasis on whether the area of law in question is typically the domain of specialists. The Supreme Court of Vermont, for example, held that attorneys have a duty “to advise clients as to the limits of one’s professional capabilities and to refer them to specialists in appropriate cases.” Russo v. Griffin, 147 Vt. 20, 25 (1986). The Russo Court stressed that certain “national specialties” are particularly likely to trigger the duty to refer, listing tax law, securities law, patent law, and bankruptcy law as examples. Id. Similarly, the Northern District of California disciplined an attorney that was inexperienced in federal criminal procedures on the grounds that he had a duty to associate with knowledgeable counsel or obtain advice from competent counsel. See In re Dempsey, 632 F. Supp. 908, 921 (N.D. Cal. 1986).
While case law demonstrates that attorneys increase their chances of being found in breach of their ethical duty of competence when they practice in unfamiliar specialties it leaves unanswered a crucial question: how should an attorney determine whether a particular field is a “specialty”?
Attorneys should look to official recognition of specialties. The American Bar Association accredits private national specialist certification programs that meet standards promulgated by the ABA’s Standing Committee on Specialization. Moreover, many state bar associations provide lists of specializations for which they offer certification.
Although these lists of formally recognized specializations provide helpful guidance, they do not exhaustively list specialized areas for the purposes of the duty of competence. Attorneys, therefore, must determine whether an area of the law is effectively treated as a specialty. An attorney should determine whether the matter in question is normally undertaken by specialists. In Horne, the court was persuaded by the fact that tax law was commonly acknowledged as a specialty by practitioners and commentators. Other examples abound. Capital defense litigation is a “constantly evolving, specialized area of the law,” State v. Difrisco, 174 N.J. 195, 239 (2002), that requires legal knowledge “completely different than any other kind of criminal practice.” Bailey v. State, 309 S.C. 455, 461 (1992). Yet while many states offer specialist certification in criminal law, capital defense work is rarely recognized formally as a specialty. Attorneys taking on matters in unfamiliar areas must be cautious in determining whether common practice has rendered the area of law a de facto specialty.
A Generalist’s Knowledge in a Specialist’s Field
If the above analysis reveals that neither official recognition nor common practice treat the applicable area of law as a specialty, then the case is one of the “many instances [where] the required proficiency is that of a general practitioner.” Model Rules of Prof’l Conduct R. 1.1, cmt. 1. If the applicable area of law is a specialty, the attorney should next determine whether a general practitioner’s knowledge is sufficient to fulfill the duty of competence.
Horne made clear that a generalist’s knowledge is sometimes sufficient in a specialized area by recognizing that “[m]any tax matters are so generally known that they can well be handled by general practitioners.” 97 Cal. App. 3d at 415. Accordingly, an attorney should look beyond the area of law’s status as a “specialty” to determine whether the specific issue involved is within the grasp of a general practitioner.
Attaining Competence Through “Reasonable” Self-Study
To determine whether reasonable self-study will bring them up to speed, attorneys must take pains to objectively evaluate the gap between their present abilities and the threshold for competence in a specialized area. Several considerations are relevant to this difficult self-searching.
Attorneys should consider the availability of study materials regarding the relevant specialty. For example, a Silicon Valley attorney has an advantage in obtaining competence in patent law due to the abundance of knowledgeable colleagues and nearby continuing legal education offerings. Another consideration is whether the attorney has experience handling matters that are related to the specialty. Thus an attorney may have minimal experience with bankruptcy law yet have extensive experience in areas of law that are intertwined with bankruptcy, such as contract law, secured transactions, and real and personal property law. For this attorney, competence in bankruptcy is probably attainable through “reasonable” self-instruction. Moreover, an attorney should decide whether self-study is feasible not only in terms of the amount of time necessary to become competent, but also in terms of the feasibility of incorporating the preparation into his or her schedule.
If these considerations reveal that an unreasonable amount of self-preparation would be required to achieve competence in the specialty, then the ethical duty of competence requires the attorney to associate a specialist or refer the client out to a specialist.
Michael Foy is a pupil member of the Honorable William A. Ingram AIC in San Jose, CA.
© 2011 Michael Foy. This article was published in the July/August 2011 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.