Volume 19, Number 7
Handling Cases Outside Your Practice Area
By Mary Ann R. Baker-Randall
A long-standing, good-paying client says to you, "I know you don't do family law, but I trust you. I don't want another lawyer to represent me in my hour of need. Please represent me in my divorce." The alarm bells scream in your head. You know you should not dabble outside your area of practice, but you also fear losing this excellent client and potential referrals.
Why do clients do this? A patient would not go to a podiatrist to treat breast or prostate cancer. The doctor may be the world's greatest foot doctor, but a sane person wouldn't expect that doctor to "dabble" in cancer treatment. Nevertheless, clients don't understand the same is true about legal expertise. To them, all lawyers should be equally competent in all areas of the law. If only that were true.
Maybe the client has become a friend as well as a source of steady revenue. You genuinely want to help, and you start to think, "After all, how hard can a divorce be?"
Where to Start
Do not immediately agree to the representation. Tell the client you need to know more about the situation, just like you would with any other potential new matter. Follow your normal office procedures for handling new cases.
At the initial consultation, explain your desire to help but be absolutely clear that this kind of case is outside your area of expertise. Be totally honest. If you've never handled a divorce in your 20-plus years of practice, tell the client. Maybe he'll change his mind and ask for referrals right there and then. Maybe he'll say, "I don't care. I know you're smart, ethical, and ruthless. I still want you to do this for me."
If, after choking down the lump in your throat, you choose to proceed with representation, I highly recommend affiliating with experienced co-counsel "of record" (which puts two malpractice carriers on the hook). Tell the client he will incur additional fees and there may be some duplication of effort. Explain that you have a professional duty to associate with more competent counsel and that violating the Rules of Professional Conduct could jeopardize your license to practice law forevermore-including the client's future matters.
If the client balks or you can't find another attorney to come in as formal co-counsel, then try to find an experienced attorney willing to serve as a sounding board and reviewer of draft documents on an hourly basis. Sell the notion as an "unbundled" legal service to the other attorney and to the client. Remind the client of the old adage "penny-wise and pound-foolish."
Finding appropriate co-counsel need not be a laborious project. If you have no idea who the "best" divorce attorneys in the area are, consider calling the chief judge and saying, "You don't know me. I am Attorney Smith, and I need to hire a lawyer for a divorce. In your opinion, who are some of the attorneys who do a superior job in your courtroom?" Some judges decline to comment, but others are glad to help. It's worth a shot.
In addition to leads from the chief judge, ask your colleagues. Find out which lawyer they would hire if someone in their family were getting divorced. Contact bar associations for referrals of attorneys who concentrate in family law. If your state authorizes board certifications in this practice area, start there. You may also want to check with the American Academy of Matrimonial Lawyers, www.aaml.org, for members in your city. Contact the family law section of your state or local bar for names and numbers.
Undercharging the retainer/Underesti-mating costs. If you're an experienced civil litigator, criminal defense attorney, or estate planning lawyer, you know how much to charge for the retainer and roughly how much the entire case will cost once you get deeper into it, i.e., after the judge is assigned, opposing counsel enters an appearance, and discovery is under way. When you take a case outside your comfort zone, you have no such standard. You are more likely to undercharge because you: (1) don't know what you're getting into; (2) understand you can't ethically charge the client for actual hours spent drafting pleadings-it may take you hours to do a task an expert could do in 30 minutes; and (3) don't know the rhythm of a divorce case, i.e., when information gathering or custody evaluations will leave you free for other work.
Avoid the under/over dilemma by talking with the pros and getting their opinion on how much such a case should cost. Then get the money upfront when the client signs the written representation agreement or engagement letter.
Unwritten procedures. Judges, like all human beings, are creatures of habit. Find out how your particular judge likes things done. Don't be afraid to introduce yourself to the judge's secretary. Explain that you don't practice before this judge and want to make sure you make life easier for the judge by being as helpful as possible to the secretary. Then ask straight up, "How does Judge Jones like things done?" Does she prefer written motions spelling out all the factual details or a short statement of the disputed issue? Does she prefer testimony by offers of proof, or does she want to hear straight from the witnesses? Does she allow telephonic testimony by out-of-state witnesses, or must everyone be in the courtroom? Does she like trial aid summaries, or does she really want to review 15 years of tax returns and bank statements? Does she assign certain issues, like temporary support, to hearing officers? Are children allowed or required to testify-if so, in court or in chambers?
Unwritten legal interpretations. In law school, we were taught to do research by reading the statutes and case law. That was fine for the academic world, but in the real world, different judges interpret the law differently. There's often no written record of these interpretations, but lawyers who regularly practice before particular judges get to know how they are likely to rule. You, as the novice, have no way to know this unless you ask an experienced attorney. Don't waste time posturing or arguing untenable positions. Check with three experts to form an accurate picture of what is likely to happen to your client on a particular issue.
Mary Ann R. Baker-Randall , a board-recognized specialist in family law in New Mexico, frequently writes and presents on family law and small law office management topics. She can be reached at firstname.lastname@example.org