United States: Malpractice On Trial: Avoiding Claims

Every lawyer would like to retire without ever facing a legal malpractice claim. Unfortunately, that's unlikely to happen for most lawyers today. In 1950, lawyers who entered the profession had an approximately 2 percent chance of being sued by a client; by 2000 that had risen to 95 percent.

This massive jump is due to several factors: in the 1980s, law school became the America graduate school of choice and law is a highly competitive business. The overpopulation and competition creates major pressure for lawyers to find clients and generate and collect fees, resulting in brutal work schedules, exhaustion, and errors. And for their hard work and dedication, lawyers are the most maligned professionals in America today. One internet search yielded more than 100 separate sites for lawyer jokes.

Dismal as that sounds, there are things that you can do to reduce your chances of being sued. Here is our top 10 list:

1. Perform conflict checks in every case.

2. Properly staff matters.

3. Communicate with your clients.

4. "Paper the file."

5. Memorialize the relationship in writing.

6. Keep detailed time records.

7. Avoid suing clients for payment of fees.

8. Establish a workable docketing system.

9. Comply with applicable continuing legal education requirements.

10. Maintain adequate malpractice insurance.

We will take each item in turn below.

Perform Conflict Checks in Every Case

Create a system to check for conflicts of interest prior to accepting any new representation. For the system to work, all lawyers in your firm must maintain records regarding contact with clients and potential clients so that all conflict issues can be identified and addressed. A complete, documented conflicts check should be part of the mandatory procedure for setting up a new matter file.

Properly Staff Matters

Assuming that you have no conflict, make sure that you have the expertise for the matter: trials should be managed by trial lawyers, transactions by transactional lawyers, patents by patent lawyers, and so on. Do not take cases outside your area of expertise, even for a longtime client. And don't take a case and then hand it off to someone else to handle. Confirm docketing of deadlines and maintain some level of participation in or communication with the lawyers working on the file as well as the client. No client wants to feel dumped.

Communicate with Your Clients

Each and every client that you have is your most important client, and every case that you have for them is important. Uninformed clients don't feel that is true and are unhappy clients. Return clients' calls and email inquiries promptly, and keep a record that you have done so. Send routine reports, even if you are not asked to.

Give a client written notice, in sufficient time for the client to consider and comment, any time that you plan to take action that affects the client's rights. This includes settlement discussions, initiation and dismissals of actions, and execution of dispositive documents on behalf of a client.

If a client presents a complaint regarding representation, respond as quickly as possible, in writing, to address the concerns. Do not threaten to withdraw or take other action related to the representation unless no other alternative exists. Always offer to assist the client in obtaining replacement counsel, if the client so desires.

"Paper the File"

Having a good file makes it easier for you to remember everything that has happened in a matter, improving your effectiveness as a lawyer and assisting in your ability to explain conduct to a client, if necessary. Not to mention that plaintiffs' legal malpractice lawyers relish the opportunity to point out the absence of documents in a file showing work performed, communications with clients, or confirmation of decisions made by clients.

Note, though, be circumspect in what you say in your notes in the file, memos, and emails. Consider how statements will sound if read to others years later after your client has requested and received your entire file.

Memorialize the Relationship in Writing

One of the most important pieces of paper in your file is the one showing the terms of representation. The scope of representation and the fee for it should be set out in a document for each new matter, even for the same client. Establish expectations at the onset of representation regarding billing practices. And confirm with your client, in writing, any agreements regarding changes in terms for payment of fees and billing rates.

Once you've finished your work for a client, terminate the representation in writing. You should do this for each separate matter that you have for a client. If you decline representation or terminate prior to resolution, you should notify the actual or would-be client in a writing that also sets out relevant deadlines that may affect the client's rights.

Keep Detailed Time Records

The importance of invoices and time records cannot be emphasized enough. They are often the best evidence that conversations and meetings occurred (or did not occur), particularly when a client does not take issue with them after receipt of a bill. Even if you are paid a flat or contingency fee, keep detailed time records reflecting the work that you do. Log the tasks that you perform and include enough detail to justify the time spent, the topics covered, and the decisions made.

Avoid Suing Clients for Payment of Fees

If you have established the relationship in writing and kept detailed records of your work, you will be in a much better position to prove the value of your work. You will need to do that if your client does not pay, because you need to be prepared to fend off a counterclaim for legal malpractice if you sue for fees. Nonpaying clients are infuriating, but step back and consider whether the potential to collect that money is worth the stress and lost time associated with defending a lawsuit alleging malpractice, breach of fiduciary duty, or worse.

Establish a Workable Docketing System

A clear system should be established for entering dates into the applicable calendaring system to ensure that all responsible persons are aware of all relevant dates. Case deadlines should be tracked by multiple people within your team to ensure that no dates are missed. And everyone on the team should know who is responsible for meeting which deadlines.

Comply with Applicable Continuing Legal Education Requirements

Ensure that you are up to date on all applicable continuing legal education requirements, preferably in areas relevant to your practice. In-house seminars are encouraged to educate new lawyers regarding procedures for conflict checks, establishing representation, and maintaining communication with clients.

Maintain Adequate Malpractice Insurance

The nature of your practice typically dictates the amounts and kind of malpractice insurance coverage needed, but consider carefully the various terms offered. Many carriers offer coverage for "claims repair" (fixing a problem before it becomes a claim), bar-grievance defense, and subpoena assistance. All of these coverages are designed to help avoid claims. Consider also who the insurer usually hires as defense counsel, along with the limit (which needs to be sufficient for a "worst-case scenario" for your most significant case), named insureds (which needs to be all lawyers doing work for your firm), and time limitations (ensure no gaps).

There is no way to guarantee that you won't be sued or the subject of a claim, but following these top 10 make it more likely that you will be part of the "5 percent."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions