Memo B:
Your supervising attorney specializes in tax and estate matters. Mr. Big, a longtime client, has come into the office today with a problem. The problem is that his son, Mr. Small, has been arrested for driving under the influence. Mr. Big asks your supervising attorney to handle this matter for him for free because of all the business Mr. Big has given to the firm all these years. No one in the firm has any criminal law background aside from their classes in school.
Your supervising attorney wants to take the case to please Mr. Big but he is concerned that there may be an ethical issue here because he is not a criminal law attorney. He has asked you to research the implications of the firm if they take the case. Is there any way to justify taking this case in any way without breaking ethics rules or law? Please analyze all the issues involved here and use precedent.
Facts:
A supervising attorney specializes in tax and estate matters. Mr. Big, a longtime client, has come into the office today with a problem concerning his son, Mr. Small. Mr. Small has been arrested for driving under the influence. Mr. Big has asked the supervising attorney to handle this matter for him for free because of all the business Mr. Big has given to the firm all these years. No one in the firm has any criminal law background aside from their classes in school and there is concern that an ethics rule or law may be violated. The supervising attorney must decide whether or not to agree to represent Mr. Small in his DUI matter.
Conclusion:
The supervising attorney may agree to represent Mr. Small, despite his lack of DUI or criminal law experience if he ensures that he can gather the necessary legal knowledge to competently represent the client, possibly use the expertise of a consulting lawyer he is well-versed in this area of law, and devote all necessary time and effort to properly and thoroughly prepare for each step of the representation.
Issue:
Is it a violation of a rule of professional conduct to handle a legal matter in which one has no prior experience?
Rule:
It is not a violation of an ethics rule to handle a legal matter where a lawyer has no prior legal experience if he will provide representation that will include reasonably necessary legal knowledge, skill, thoroughness and preparation.
Analysis:
RPC 1.1 concerns the level of competence that a lawyer must exhibit when handling a client’s legal matter.
Rule 1.1.Competence.
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 question is, does a lack of experience in a particular area of law bar an attorney from taking on a case within that area of law. Here, the lawyers in the firm have no DUI experience, nor other criminal law experience, for that matter. However, the comments to RPC 1.1 provide significant guidance as to whether that lacking can be overcome. As per Comment (1):
“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. Expertise in a particular field of law may be required in some circumstances. “
Here, DUI law is arguably not overly complex relative to many other areas of law and is often handled by a general practitioner. If the lawyer choosing to handle same can sufficiently prepare and study this area to raise his level of knowledge, perhaps making use of a consulting attorney with vast knowledge in DUI practice, he can meet the requirement of having sufficient legal knowledge. Comment (2) clarifies 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… A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question….(4) A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.”
Conclusion:
The supervising attorney may agree to represent Mr. Small, despite his lack of DUI or criminal law experience if he ensures that he can gather the necessary legal knowledge to competently represent the client, possibly use the expertise of a consulting lawyer that is well-versed in this area of law, and devote all necessary time and effort to properly and thoroughly prepare for each step of the representation.