Can You Practice in a New Area of Law During COVID-19?

These troubled times of the coronavirus outbreak have motivated some people to seek help in areas they may not have previously practiced, such as estate planning, federal and state benefits, and landlord-tenant services. In fact, a recent survey found that 24% of firms were strongly considering changing or broadening the practice areas they focus on in response to the coronavirus challenges.

Several attorneys have asked the WSBA Ethics Line whether they can offer services in areas that are new to them. The primary ethical principle to consider before you offer any service is competence.

Competence is Key

Before you agree to offer any legal service, RPC 1.1 requires you to provide competent representation. Unsurprisingly, it’s the first ethics rule in the book. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Note that a lawyer need not have prior experience in the area as long as they become competent through necessary study or through the association of a lawyer established in the field in question. RPC 1.1 Comment 2. Also note, however, that although a lawyer can become competent in a new practice area through “necessary study,” if the lawyer must spend extra time learning or preparing for tasks that would be routine for a lawyer with experience, the lawyer should not expect the client to pay for the lawyer’s education. In re Estate of Larson, 103 Wn.2d 517, 694 P.2d 1051 (1985) (in a dispute over attorney fees incurred in the probate of an estate, the lawyer testified that his primary area of practice involved personal injury and wrongful death; in reversing the assessment of attorney fees, the Washington Supreme Court noted that an inordinate amount of time was spent on tasks that presented no difficult or complex legal or administrative problems); see generally ABA Annotated Model Rules of Professional Conduct 27-28 (8th ed. 2015).

Resources for Competence in New Areas

WSBA has a number of resources available to assist lawyers looking to become more competent in areas new to them.

• Online CLEs: The WSBA offers many online CLEs. For example, the CLE “Executing Estate Planning Documents During COVID-19: Best Practices” gives excellent basic principles as well as hot off the press tips for this emergency period. It’s available now and free until June 30. You can find it and other on-demand CLEs at the myWBA CLE Store.
  
  
• WSBA Section Resources: Numerous sections are heavily involved in emerging issues related to the coronavirus, so you can learn the basics and stay abreast of changes in the law. Joining a section gives access to experienced practitioners, the list serve, section CLEs, and other curated content.
  
  
• Practice Management Assistance: For resources for your practice—including marketing strategies, technology adoption, and client communication—members can contact the Practice Management Assistance Program by emailing pma@wsba.org or scheduling a phone consultation.

In short, knowing what you are doing is the first rule of lawyer ethics. The required attention and preparation are ordinarily determined in part by what’s at stake; major transactions require more extensive treatment than lesser complex matters. For example, you may be able to get up to speed to prepare a simple will more easily than learning to prepare a larger estate. RPC 1.1 Comment 5.

WSBA can help. If you have concerns, contact the WSBA Ethics Line at 800-945-9722, ext. 8284.