It used to be the case that a lawyer could hang up his/her shingle and practice in a variety of legal areas. Nowadays, many lawyers represent clients in just a few practice areas. Some specialize (seeking designation through a state Supreme Court or the National Board of Trial advocacy) or focus on just one or two practice areas. There are pros and cons to specializing for the lawyer and for the client.
Even lawyers who focus on fewer areas of law can still make mistakes. The question begs, when a lawyer who specializes makes a mistake that causes their client harm, what standard of legal care applies?
What is the standard of care when lawyers specialize?
The standard of legal care for an attorney is that of any type of malpractice claim:
- The attorney owed a duty of care to his or her client
- The attorney deviated from that duty of care
- The client suffered damages
- The damages were directly related to the deviation
In short, an attorney who advertises his work as a criminal defense lawyer would be held to the same duty of care as any other criminal defense attorney in the area.
However, if an attorney is Board Certified – a designation that not every state accepts, for the record – and he or she deviates from the standard of care, the victim of legal malpractice may potentially have a stronger claim for damages.
Some of the reasons lawyers specialize
There are some practice areas, such as patent law, where a lawyer has to have a special certification in order to practice in that area of law. Some states have certification programs for almost every type of practice area, such as marital law or bankruptcy law.
Lawyers are focusing on fewer areas for several reasons:
- It’s better to be a master of one than a master of none. As with any skill, focusing on one aspect exclusively can help a person become better in that specific area – especially because laws change often, and can change from state to state. By focusing on specific areas, like medical malpractice or civil sexual assault claims, attorneys can focus on securing the right continuing education, keep up-to-date with changes in laws and practices, and ensure that their clients’ needs are met.
- It makes things easier for potential clients. Experience matters, and clients deserve attorneys who have experience in the types of legal situations they find themselves in. If you are injured in a car crash, you want an attorney who has handled car accidents before. If you need a contract created for a new business partnership, you want someone who ahs worked with other business owners, buyers, and sellers.
- It allows for a better allocation of resources. Support staff, a network of expert witnesses, and software are critical infrastructure to a firm, and clients deserve an attorney who has this infrastructure in place. Devoting resources to hiring the right people, securing the right network, and purchasing and using the right software (especially for e-discovery) reduces a risk of an attorney taking on more than he or she can handle.
In short, specializing in a particular area of law can help an attorney avoid the biggest risks of a legal malpractice claim: having too many clients and not enough time; being inexperienced in an area of law; and giving short shrift to case evaluation. Any of these risks can be present for any attorney, though clients may assume that a specialist is one who would avoid all three. After all, you would expect a specialist to know his or her area of law, to be able to properly evaluate a case, and would have the resources in place to represent a client from start to finish.
A few examples of specialty practices where legal malpractice can occur
Certain specialties may be more likely to see legal malpractice claims. According to the Expert Institute, the four areas most likely to see a legal malpractice claim include:
- Business transactions
- Corporate and securities
- Real estate
- Trusts and estates
Other areas include:
- Bankruptcy and collections
- Family law
- Criminal defense
- Criminal prosecution (in the form of prosecutorial misconduct)