Practicing Threshold Law

Attorneys inevitably get asked one big question when people find out what they do for a living, especially if the person asking is already involved in a legal matter.

That question is, “Can you help me?”

The answer to the “Can” question is technically “Yes, I can.”

The real question, however, that should be asked is, “Should they be helping me?”

That is a whole different issue.  Here’s why.

All attorneys who are licensed to practice law are essentially deemed to be competent to practice in any area of law and to represent clients in any legal matter.  Scary, huh?

The biggest problem in many situations is that some attorneys actually believe that because they are deemed to be competent, that they really are competent in any area of law, which unfortunately is not always true.

They interpret their license to practice as meaning that they should and ought to take on anything they come across in their marketing or practice building efforts.

This is usually referred to as a “general practice.”

There’s another phrase, or legal lingo, that we in the profession use to refer to that type of practice :

Practicing Threshold Law

I prefer that phrase because I think it is much more descriptive, and accurate Practicing threshold law means taking on any case that crosses your doorstep, or your “threshold.”

Here’s the dirty little secret:  Most of the time it’s a recipe for disaster, both for the attorney and the client.

The problem

Although an attorney is deemed to be competent, that is not always the case.  The issue arises often, and an attorney has the ethical duty to address it. But ego, and money, can be a really bad thing.

Ethically, it is up to the attorney to realize that there is a problem and make the individual call, on a case by case basis, as to whether they can competently represent a client in such an case.

A good attorney know that, and knows their limitations.  A bad one, not so much.

Many times, while practicing “threshold law” attorneys end up taking on cases that they have no place touching.  Whether it is for ego, financial or other reasons, they stick with it, even if they know they are blowing the case.  While that is bad for an attorney and their reputation, it could be absolutely devastating for the client. And that is the most important thing.

Nothing is more frustrating than seeing such blatant incompetence, for those of us in the profession who put our ethics above anything else.

So what to do?

There are ethical ways for the attorney to deal with the issue of being over their head, but again, it is up to the attorney to do one of them.

  • The attorney can always refer the case out to someone who knows what to do and has sufficient experience in that area of law.
  • Alternatively, they could stay on the case and associate with someone who can assist or direct them as the case proceeds.
  • The last option is for the attorney to get themselves up to speed on that area of law while they keep the case.  That, however, requires a client pay the attorney to learn what he should have known in the first place.

That last one seems a little wrong, doesn’t it?

Most attorneys are good and they know their limitations, and stay within them.  Like any other thing in life, however, there is always a few bad apples out there.  In this case it is those attorneys who think they can do it all, and they end up tainting the entire profession and make the rest of us look bad.

If you are a client, and you find yourself in the situation where you can tell your attorney is out of his depth, here’s some free advice:

Run, don’t walk!  Find someone else to represent you.

Attorneys are supposed to put the client first, no matter what.  It’s in our oath.