Karpal Singh.  Preet Bharara.  Fatou Bensouda.  When these names are mentioned, we instantly recognise them for their work done in a precise area of law.

There are numerous arguments as to why being a "Jack of all trades, master of none"[1] is not altogether a bad thing; however, in the field of law, a lawyer who tends to be a “Jack of all trades and master of none” tends to run a higher risk of committing legal malpractice or having a claim filed against him or his legal practice, as a result of negligence or failure to know the law.[2]  This is because the slightest uncertainty or lack of knowledge of the law or legal procedures could lead to wrong decisions being made or important must-do’s being overlooked.

This is not to say a lawyer should  stop expanding his or her legal knowledge but to ensure that the cases he or she represents are one’s in which the lawyer is comfortable with and has confidence in executing with no mistakes made in the process.  As the law changes and progresses, the standard of care governing the legal profession should not decrease.  Such legal errors arising from failure to know the law largely revolves around conveyancing matters as compared to other areas of legal pratice.  This can be seen in the claims trend reported to the Malaysian Bar Council Professional Indeminity Insurance Scheme (“MBar PII Scheme”) during the past decade in which conveyancing (residential and commercial) claims make up more than 50% of all claims per year.[3]  Some of the errors made are seen as trivial but the effect could result in hundreds of thousands or sometimes millions of Ringgit lost.  Overall in 10 years of the PII Scheme, damages paid in regards to conveyancing claims have been more than RM20 million.[4]  

Below we have outlined two examples of lawyers who were not particularly familiar with dealing with certain types of conveyancing issues and in these cases forgetting to do simple checks which rendered the agreements fallacious.

Scenario II A straightforward Sale and Purchase Agreement [“SPA”] between a Vendor and a Purchaser went chaotic due to the fact that the lawyer, who drafted the SPA, wrongly stated the property number that was being purchased.  To make matters worse, the lawyer, when told of the error by his client, amended the property number without consulting the other party.  When questioned on his conduct, the lawyer’s reason was that they technically did not defraud the other party and was merely making changes to the SPA on what was originally agreed on.

Other areas of law where there are a high number of claims based on the failure to know the law are bankruptcy and intellectual property related matters.  There have been instances where lawyers receive instructions from their clients, who are a bankrupt, to carry out a land sale which fails to be executed at its final stages because the lawyer did not conduct a bankruptcy search beforehand.  Besides that, lawyers also land themselves in trouble when they take their client's word conclusively without conducting land searches which later results in fraud allegations thrown at the lawyer itself.[5]  More often than not, these errors and omissions are made due to the lawyer's lack of knowledge on how to discharge the procedural necessities.  This is also caused by a lawyer handling a range of cases which involve different areas of law with which the lawyer is not familiar with but decided to undertake the matter as a business opportunity.[6]
 

As a legal practitioner, the lawyer owes a legal duty to confirm that the documents and facts provided by his or her client are precise and not counterfeit.  Lawyers also owe a duty to carry out his or her legal profession correctly and align with the code of conduct.  The legal profession is one of the few professions where it is essential that one’s knowledge is up to date with the legal developments as it may affect the client’s position and rights.

✓ You should never dabble beyond your expertise or be tempted to do so due to a large retainment fee.
✓ You should only represent a client and his/her case if the lawyer is fully comfortable with the area of expertise.
✓  If a potential client approaches you to handle a matter which is beyond your legal expertise, you should refer the matter to a lawyer who specialises in that particular area of law.
✓  If you are unsure of a matter halfway through the retainment, do not shy away from consulting another lawyer who has the knowledge or refer your client to a more pertinent lawyer.
✓  Rushing or taking shortcuts when handling a legal matter will eventually come back to haunt you.  You owe a standard duty of care to your client to do the job right.
✓  If you wish to expand your legal area of practice, start by attending Continuing Legal education (“CLE”) courses or consult a senior lawyer who has been practicing in that particular area of law.  Do not start by undertaking files and only learning the process of law involved along the way.

*Editor's Note: As the public are becoming more conscious of their rights and the duty owed to them by their lawyers, it is imperative that lawyers are aware of this and also the current difficulties and claims faced by their fellowhsip. Our objective is to highlight to members certain risks based on real case studies, case law and academic articles produced by other law societies.

The views in this article are not meant to be definitive and do not conclude that the lawyers have extra responsibilities or duties under the current law. It was meant to offer additional tips and steps for the lawyer to avoid falling into a similar situation. The example given was taken from actual claims which are currently on-going. The stance in Wilhelm v Hickson (2000) is limited to its facts.

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