Volume 19, Number 7
October/November 2002
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.
Possible Pitfalls
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
maryann@familylawnm.com
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