Acting Outside the Scope of Authority, Duty, or Area of Competence

In addition, there are clear instances when attorneys should decline representation because they are not skilled enough—or do not possess the requisite subject matter knowledge—to provide competent representation for a client. By way of example, such legal matters as wrongful death by medical malpractice, complex corporate mergers or buy-outs, or complex financial transactions, should not be handled by new attorneys without supervision. Often, mistakes in taking on a new client are made when new attorneys want to “impress” their colleagues or superiors, or when sole practitioners need money or more cases.

An attorney retained to represent a client in one matter may unilaterally and without authority decide to represent a client, or act on the client’s behalf, in another unrelated matter. The client may subsequently ratify the representation, or, if harmed, may sue for malpractice. Likewise, an attorney retained for a specific matter may unilaterally and without authority decide to accept an offer of settlement for a certain amount of money, without the client’s authority. This is a good example of malpractice but may not be “actionable” malpractice, if the client is unable to prove (by a preponderance) that he or she would have gotten more money had the matter gone to trial.


Inside Acting Outside the Scope of Authority, Duty, or Area of Competence