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Is it considered malpractice if an attorney charges to advise in an inexperienced field?

San Jose, CA |

as far as i understand, attorneys don't have licenses to practice in particular areas of law, so what happens when they are inexperienced and give you bad counsel?

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Attorney answers 3

Posted

You are correct when you say that attorneys don't have licenses to practice in a particular area of law.

An attorney generally has a duty of care when practicing. It is not necessarily negligence or malpractice if an attorney gives advice in an area of practice that is new to him or her. That attorney, however, has a duty to familiarize himself with the law before giving advice or practicing in that new area. If necessary, the attorney must associate with more experienced co-counsel, so that the duty of care is fulfilled. The attorney can also charge a reasonable fee for giving advice in that new field,

Malpractice claims depend heavily on the facts. It is not possible to tell if your attorney committed malpractice in your case. You should consult with a malpractice attorney in your area to determine if you indeed have a malpractice claim.

Posted

Agree with Mr. Perry's advice. Another way of looking at the question would be that malpractice would usually be practically the same thing as breaching the Rules of Professional Conduct which govern the discipline of attorneys in California (and are similar in most states, being based on the ABA model rules.

The rule in California (link below to full rule) regarding competence to handle a matter is Disciplinary Rule ("DR") 3-110, which states in pertinent part:

"Rule 3-110 Failing to Act Competently
(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required."

Posted

You have received good answers already. I just want to add that there can be a big difference between an attorney acting contrary to the Rules of Professional Conduct (RPC) and an attorney that is liable for attorney malpractice. Certainly the breach of a RPC can cause malpractice, but malpractice requires much more to prove. You say you got "bad counsel." Bad counsel does not necessarily equate with malpractice. There are many kinds of mistakes in judgment, opinion, process or legal substance that will never reach the level of attorney malpractice.

If you believe the bad counsel you got may be malpractice, your best course of action would be to find one or more legal malpractice attorneys and consult with them in a one on one environment where you can share all the details with them. This site is woefully inadequate to have that kind of interchange.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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