Avoid Malpractice this Holiday Season

The holidays are full of family dinners, parties with friends, days away from the office — and the possibility of legal malpractice. There are two main risks: (1) going to holiday parties, and (2) taking time off. Both pose risks to the unwary, but with a little thinking ahead you can avoid any problems.

Dodge Casual Legal Questions

There are several ethical risks associated with casual legal questions, whether they’re asked over dinner or at a party. The biggest concern, of course, is that you will get the answer wrong. Whether from a lack of the necessary facts, a misunderstanding of the law, or the amount of eggnog you’ve had, it doesn’t matter. There is still a risk that the person asking the question will rely on your answer to their detriment.

A less likely but equally avoidable risk is that someone will leave a conversation thinking they have a lawyer. Ninety-nine times out of a hundred, the lawyer does not share that belief after a casual conversation over turducken.

The easy way to avoid these problems is to be clear and polite. You aren’t your sister’s or your cousin’s or your friend’s lawyer. Just don’t give out legal advice over dinner. It would be to everyone’s detriment if you offer advice blindly or casually, without getting all the facts and a signed retainer agreement. And you would you like some more sweet-potato pie please.

Prepare for Time out of the Office

If you have a secretary or virtual receptionist, this won’t be a big issue. But even if you have someone answering the phones, you need to set client expectations for your availability. Comment 4 to Rule 1.4 specifically says that “[a] lawyer should promptly respond to or acknowledge client communications.”

Set an Email Auto-Responder

The auto-responder is a handy tool, and every email provider and app has one. Just turn it on when you leave the office for the holiday and you’ll be all set. Randall has discussed the do’s and dont’s of auto-responders before. But to summarize, keep it brief and to the point. Let people know if there is a number to call for emergencies, and let them know when you will be back in the office.

Change Your Voicemail Message

I have clients that call a lot. They call on weekends, at night, in the early morning, and on holidays. I try to set the expectation with these clients that I will get back to them as soon as I can, but usually within a couple of business days. Changing your voicemail greeting ensures that all of your clients are on notice about your absence. Like the auto-responder, make sure to let people know when you are coming back.

Don’t Miss Deadlines

If you have deadlines in the coming weeks, make sure to look up court holidays and double-check the dates. Some courts close early the day before holidays. Worse, I’ve experienced courts closing early unannounced. If you are planning to file something at the last minute (and isn’t that so often the case?) make sure the courthouse will be open. Also make sure the last minute is when you think it is. There is no sense rushing around like a crazy person to get a brief in by Friday if it isn’t due until Monday because of a holiday.

Christmas and New Year’s fall during the week this year, which means a lot of court closures. It never hurts to double check on these things before heading out of town to enjoy some family drama time.


  • 2012-11-21. Originally published.
  • 2014-12-17. Updated and republished.

Featured image: “Multi Generation Family Celebrating With Christmas Meal” from Shutterstock.

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