The article discusses the risks taken by lawyers when they accept work that is outside their field of expertise.
For practitioners under pressure to perform financially, the thought of turning down a possibly lucrative piece of business because it falls outside their area of expertise is an anathema. Faced with this dilemma, many lawyers take on the work and give it their best shot. This tactic is fine when all goes well but unfortunately things frequently go wrong.
No lawyer can hope to be an expert in all areas of the law. Unfortunately, it appears many lawyers remain unconvinced of this fact. Otherwise, we would have far fewer professional indemnity claims against lawyers.
This is as much a problem for medium to larger firms as it is for small firms. In the case of medium to larger firms, the client often leaves it to their client contact within the firm to select the lawyer with the appropriate expertise to undertake the work for them. Failure to direct the work to the person with the appropriate expertise can result from inter-departmental rivalry, an eagerness of partners to ‘control’ a piece of lucrative work or simply from the fact that despite the firm’s size, the appropriate expertise does not reside within the firm. The last reason is almost always the problem in smaller firms.
A solicitor creates unnecessary risk where he takes it upon himself to act in matters beyond his competence. In such circumstances he acts ‘at his peril.’ If he errs, he may be liable in negligence notwithstanding that he has exercised his utmost skill and care. [Jackson & Powell on Professional Negligence, 5th Ed]There is the additional problem of ‘holding out’ expertise in certain areas when the lawyer does not have that expertise. In the case of the Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172, Megarry J asked this question: ‘No doubt the inexperienced solicitor is liable if he fails to attain the standard of a reasonably competent solicitor. But if the client employs a solicitor of high standing and great experience, will an action for negligence fail if it appears that the solicitor did not exercise the care and skill to be expected of him, though he did not fall below the standard of a reasonably competent solicitor?’ Megarry J went on to say; ‘The uniform standard of care postulated for the world at large in tort hardly seems appropriate when the duty is not one imposed by the law of tort but arises from a contractual obligation existing between the client and the particular solicitor or firm in question.’ (at page 183)
Jackson & Powell on Professional Negligence states; ‘Furthermore, if a complex matter comes before a solicitor with an insufficient specialist experience, in appropriate cases he should surely refer it to a competent specialist, and if he does not he should surely be liable as if he did possess sufficient specialist knowledge.’ (at para 10–093)
One example of such a case is Asian Sky Television and ANR v Bayer-Rosin [2003] All ER 133, where the lawyer in question did not understand the specialist law concerning compulsory purchase (land acquisition) and as a result, had not realised that the vendors would not be in a position to deliver vacant possession. The lawyer was found to be negligent.
Lawyers need to remember that many claims are avoidable. Avoiding risk by not taking on work beyond a firm’s or individual solicitor’s particular expertise is important advice not to be ignored.
Stanley Jeremiah
Goodwins Law Corporation
E-mail: stanley_jeremiah@goodwinslaw.com