Do you know it all? When it’s unwise to advise

There can be an expectation as a legal practitioner that you are able to handle every legal problem that arises, even if the problem is outside your usual area of practice. However, dabbling in unfamiliar waters without the appropriate knowledge and experience can be unfair to the client and increase the risk for the practitioner.

Creeping scope

Taking on work outside your area of practice is not always a conscious decision. Often the situation arises from a complication to an existing matter or a piece of work flowing from another transaction.

However, a simple drafting exercise or conveyancing matter can turn into a far more complex set of circumstances. Far from being risk free, practitioners who lack experience and knowledge in the area are unable to accurately gauge if the matter is straight forward or requires additional expertise.

In Laurens & Laurens [2017] FCCA 109, a practitioner acting in a family law matter for the wife also acted on the sale of a property on behalf of both parties. The proceeds of the sale, held in trust, were distributed by the practitioner to the wife without the consent of the husband, in an amount not provided for in the final orders. The Court stated that the practitioner’s conduct  ‘[s]hows lack of understanding as to the effect of interim and final orders, and of the obligation of a lawyer acting as a trustee … It shows a level of competency in this case that falls short of what is expected of reasonably experienced practitioners’ (at [59]).

Subsequently, a personal costs order was made against the practitioner.

Tip: When in unfamiliar waters, take the time to determine the depth of your involvement and your experience before proceeding.