Misunderstanding the Law

One of the key areas of malpractice by lawyers is based on the fact that many lawyers don’t actually understand everything about the law. Sometimes, in fact, it is a misunderstanding about the law, or about a particular legal procedure, that lands a client in hot water, or results in the loss of rights or benefits to a client.

An article published in the American Bar Association’s Law Practice Magazine, in fact, notes that the failure to know or properly apply the law was the most common type of malpractice claim filed against lawyers. Here is what Daniel E. Pinnington, the author of that article, had to say:    

Failure to know or properly apply the law. Over the past few decades, legislation has become more complex and the law has become far more complicated. This means more lawyers now tend to specialize in a given area of law, with fewer general practitioners in the mix. Today, too, there are increasingly more regulations and new case law is coming out of the courts at an increasingly rapid rate. Clearly, this makes it essential that lawyers regularly participate in continuing legal education programs to maintain a current knowledge of the substantive law so they can avoid errors.

Claims further indicate that “dabblers,” or lawyers acting outside of their usual practice area, are far more likely to commit failure to know or apply the law errors. Too often, lawyers who are asked to handle a legal matter for a family member or friend seem to feel obliged to help, and then find themselves dabbling in an area of law they don’t know. And, given the relationship, it can also be difficult or awkward for the lawyer to give a family member or friend independent legal advice. The lesson: Dabbling is dangerous—don’t do it. Send the family member or friend to another lawyer.

Likewise, lawyers should tread carefully when giving advice or working on matters relating to law for a state where they are not admitted or for non-U.S. law. Not only is there a greater opportunity for making an error—your malpractice policy likely will not cover you in the event you make a mistake. Read your policy to confirm this.

Avoiding Malpractice—Are You At Risk?, Law Practice, The Business of Practicing Law, American Bar Association, July/August 2010, Vol. 36, No. 4.  

As this excerpt illustrates, attorneys need to know their limits. Trespassing into areas of law where they have little or no training or experience may expose them to malpractice claims.  A personal injury lawyer who naively believes he can handle a divorce case may find himself overwhelmed in a Family Court setting where he is required help with the distribution of a couple’s multiple pension and individual retirement accounts, settle complex arguments over alimony, child support, and the distribution of the stock options from the couple’s family business.

Conversely, a family lawyer who thinks she can handle a divorce client’s auto accident personal injury claim may find herself in turbulent malpractice waters if she’s not fully familiar with PIP claims, underinsured motorist claims, Medicare setoffs, medical letters of protection, workers compensation subrogation claims, tort claims notices and statutes of limitations, some or all of which may apply in a particular case.

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Licensed as a private detective, Mark Guralnick is a former investigative news reporter, and leverages these skills and experiences to deliver excellent client service while finding smart, practical, cost-effective solutions.

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