Chapter 4. Ethics & Professionalism - Competence, referrals, and specialization
Rule of Professional Conduct 1.1 provides that:
A lawyer shall provide competent representation to a client. Competent representation as used in this rule means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer's level of competence without associating another lawyer who the lawyer reasonably believes to be competent to handle the matter in question. Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Factors considered in determining whether a lawyer has the necessary competence 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.” 1 Commonly identified factors comprising competence include knowledge, skill, efficient practice management, ability to identify issues beyond one's own competence, preparation and follow-through, and intellectual, emotional, and physical capability.2 Competence includes familiarity with court rules as well as substantive law.3 Even highly experienced lawyers must devote themselves to a lifetime of study as ongoing changes in law, technology and business practices require continual updating of skills. A new lawyer can be as competent as one of long experience in basic skills of legal research and analysis, and any lawyer can, with adequate study and preparation, become competent in a novel area of law.4 But a lawyer can neither gain thirty years of specialized experience in a month nor expect a client to pay for all the time required for self-education in an unfamiliar area of law.5 If referral or association of another lawyer is impractical, a lawyer can strive to do what has to be done. Study, preparation, and continuing legal education are essential to attaining and maintaining competence.6
Competence implies adequate investigation of liability, defenses and liens, reasonably thorough research, consultation with appropriate experts where required, and diligent preparation. Moreover, competence requires knowledge of relevant legal doctrines, procedures, court rules, methods, and practices, which may be fundamental to specialists in a field but virtually inscrutable for a novice who lacks the time, resources, and orientation for exhaustive research of every nuance.7 Inexperience in a specialized area of law is no defense to a charge of incompetent representation; in such cases a lawyer must either work with experienced co-counsel or educate himself or herself appropriately.8 Lack of experience or familiarity with an area of law may be no defense to lack of familiarity with the standards of a specialist when a lawyer undertakes representation of a client in a case where specialized expertise is required.9 A harsh reality of life is that this burden does fall disproportionately on lawyers who begin their practice as solo general practitioners, facing in nearly every case an adversary who specializes in an area of law in which the novice lawyer has only the broadest familiarity and little practical experience.
The duty of competent representation meshes with the recognition of specialized areas of practice and the ability to share fees between lawyers not in the same firm. Rule 1.5(e) provides that:
A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable.
Rule 1.5(e) better reflects the reality of law practice economics than did the old Code of Professional Responsibility. Lawyers sharing a fee on an injury case need no longer go through what was often essentially a charade of trying to document that they performed proportionate shares of the work. So long as each assumes joint responsibility for the work as a whole and the client consents in writing to the fee division, the fee division is now perfectly legitimate, regardless of who does what. “With this change, Rule 1.5 ma[kes] expressly permissible the long-recognized practice of paying referral fees in contingent fee cases where the referring lawyer did little work on the file before referring the client to a ‘trial specialist.’” 10 The Georgia version of the rule requires that any fee division that is not “proportionate” must be in writing, with the client informed of the share each lawyer is to receive, and not objecting, and that the total fee must still be reasonable.11
Appropriate referrals are facilitated by Rule 7.4, which authorizes lawyers to communicate the fact that they specialize in a particular area of law, or that they are certified by a “recognized and bona fide professional entity.” 12 In 1990, the U.S. Supreme Court ruled that states may not completely ban attorneys from advertising their certification as specialists.13
Georgia does not certify specialists in any area of law, though Rule 7.4 authorizes a lawyer to advertise certification by “a recognized and bona fide professional entity.” The national accrediting body for lawyer specialization is the American Bar Association Standing Committee on Specialization.14 In the area of litigation, the National Board of Trial Advocacy is authorized to provide board certification of Certified Civil Trial Advocates.15
Board certified specialists may be expected to apply standards of competence, experience, and knowledge. To assure that consumers can access useful information, the name of the certifying organization or agency must be included in any communication regarding the certification. An accredited specialization designation may be seen as an objectively verifiable credential from a legitimate organization. A statement that a lawyer limits his practice to a particular field may be viewed as a subjective self-designation. However, as board certification of legal specialists is far less established than the analogous board certifications in medical specialties, lawyers who lack specialty certification are often better qualified than those who have bothered to obtain such certification.
The division of fees is always a matter of negotiation and agreement between the lawyers, subject only to the requirements that the division must be reduced to a written agreement approved by the client and that the total fee must be reasonable. In personal injury litigation, it has long been customary in Georgia to allocate one-third of the fee to the referring attorney. This share may vary downward in cases requiring extraordinary investment of time and expense, or upward if the referring attorney shares heavily in the actual work or is able to finance expensive litigation while the lawyer to whom it is referred does most of the work.
1 State Bar of Georgia, Rules of Professional Conduct, Rule 1.1, cmt. 1B.
2 ALI-ABA Comm. on Continuing Prof'l Education, A Model Peer Review System (1980); Charles W. Wolfram, Modern Legal Ethics 186 (1986); Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §15.3 (4th ed. 1995).
3 ABA Ann. Model Rules of Prof'l Conduct R. 1.1 (5th ed. 2003).
4 State Bar of Georgia, Rules of Professional Conduct, Rule 1.1, cmt. 2.
5 See Matter of Estate of Larson, 103 Wash. 2d 517, 694 P.2d 1051 (1985) (en banc); Robert L. Wheeler, Inc. v. Scott, 1989 OK 106, 777 P.2d 394 (Okla. 1989) (attorney cannot expect a client to pay for “every minute of the lawyer's preparation,” fee award reduced when first-year associate assigned to case). See generally State Bar of Georgia, Rules of Professional Conduct, Rule 1.5.
6 State Bar of Georgia, Rules of Professional Conduct, Rule 1.1, cmt. 4, 5.
7 See, e.g., The Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997) (failure to name insurance company as defendant in personal injury suit within statutory time limit indicated failure to understand relevant legal doctrines or procedures); Matter of Moore, 329 S.C. 294, 494 S.E.2d 804 (1997) (lawyer erroneously believed statute of limitations in medical malpractice case would not run until after lawyer obtained opinion by client's treating physician that malpractice occurred); Muse v. St. Paul Fire & Marine Ins. Co., 328 So. 2d 698 (La. Ct. App. 1st Cir. 1976) (lawyer relied on hospital's lien letter without adequately evaluating validity of lien); Collins on Behalf of Collins v. Perrine, 108 N.M. 714, 778 P.2d 912 (Ct. App. 1989) (lawyer recommended settlement of medical malpractice case without competent evaluation).
8 See, e.g., Matter of Yetman, 113 N.J. 556, 552 A.2d 121 (1989) (failure to refer complex matter beyond lawyer's competence violates duty of competence); In re Conduct of Eadie, 333 Or. 42, 36 P.3d 468 (2001) (competence existed “where the lawyers showed experience and professional ability to perform work) (quoting In re Conduct of Gastineau, 317 Or. 545, 857 P.2d 136, 141 (1993); Matter of Disciplinary Proceedings Against Zautcke, 180 Wis. 2d 56, 508 N.W.2d 387 (1993) (reprimand of lawyer who had never handled specialized area of litigation and proceeded without associating competent lawyer); Matter of Dempsey, 632 F. Supp. 908 (N.D. Cal. 1986) (lawyer not familiar with federal trial practice failed to notice up motions in accordance with local rules, attempted to subpoena witnesses improperly, and consistently made improper or unintelligible objections to questions or testimony); People v. Susman, 196 Colo. 458, 587 P.2d 782 (1978) (lawyer handling his first dental malpractice case failed to obtain x-rays); The Florida Bar v. Gallagher, 366 So. 2d 397 (Fla. 1978) (lawyer took on maritime personal injury claim without qualification or competence in that field).
9 State Bar of Georgia, Rules of Professional Conduct, Rule 1.1.
10 Pa. Bar Ass'n Comm. on Legal Ethics and Prof'l Responsibility, Op. 96-176 (1997).
11 Cf. Nickerson v. Holloway, 220 Ga. App. 553, 469 S.E.2d 209 (1996) (equal apportionment between referring and handling lawyers presumed in absence of writing).
12 State Bar of Georgia, Rules of Professional Conduct, Rule 7.4.
13 Peel v. Attorney Registration and Disciplinary Com'n of Illinois, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990).
14 American Bar Association Standing Committee on Specialization, http://www.abanet.org/legalservices/specialization/home.html. In addition to the National Board of Trial Advocacy, accredited specialization programs available to Georgia lawyers are: American Board of Certification (Business Bankruptcy; Consumer Bankruptcy; Creditors Rights); American Board of Professional Liability Attorneys (Accounting Professional Liability, Legal Professional Liability, Medical Professional Liability); National Elder Law Foundation (Elder Law); National Association of Estate Planners & Councils (Estate Planning Law Specialist); National Association of Counsel for Children (Juvenile Law-Child Welfare); and National College for DUI Defense, Inc. (DUI Defense Law).