I have been a solo/small firm attorney for almost five years, and a member of the BASF Solo/Small Firm section for more than four. For almost that entire time, my practice has focused on plaintiffs’ professional liability – specifically legal malpractice. For the almost decade before that, I practiced in the same area, but exclusively on the defense side. Over the last four years, far and away the number one question I get from fellow SSF members is: “What is the most common thing that gets lawyers sued?” And the truth of the matter is, it isn’t just one specific thing. But there is one thing the overwhelming majority of cases I see have in common – defendant lawyers have strayed outside their area of expertise and don’t know what they don’t know.
While there are most certainly areas of law that tend to have more malpractice claims than others (estate planning and real estate come to mind), at least from personal experience I believe most claims arise from lawyers not staying in their lane. In an era of specialized legal services, it is impossible for one lawyer to be an expert in every field. And if a mistake is made and malpractice case filed, a breach is established by expert testimony from a lawyer practicing in that field, not a generalist. For instance, residential landlord tenant law in San Francisco is notoriously and particularly specialized. Not only would it be perilous for a corporate transactional attorney to take on a San Francisco landlord-tenant case; it may not even be a wise case to take on for a landlord-tenant attorney who does not regularly practice in San Francisco.
As most members of our solo/small firm community are aware, it’s best to build a strong referral network of lawyers who regularly practice in various different fields. Then, rather than take on a case that you may not be qualified to take, you can refer that case out to a lawyer who is. And down the road, those other lawyers in your network can refer cases to you in your field. Lawyers may not be required to know the law in every field, but once lawyers take on a case in a field, they are required to know that law, and can be held liable for mistakes that should not have been made by someone who practices there regularly. By building an active referral network of lawyers in various fields – something the SSF community does a great job of doing – not only can we lower the risk of malpractice claims based on not knowing what we don’t know, but we can also ensure that our clients get the best legal services possible, from experts in the field.