Malpractice claims against attorneys are on the rise. Projections from the American Bar Association suggest that new lawyers entering the practice of law can expect to face three malpractice lawsuits over the course of their careers.
Contrary to conventional assumptions, it is not the new lawyer or the old lawyer who draws the most complaints; most legal malpractice lawsuits are filed against attorneys with 11 to 20 years of experience. Plaintiff’s personal injury attorneys account for 20-25% of all malpractice claims (depending on whom you ask). real estate attorneys usually come in second, accounting for approximately 16-20% of claims, followed by personal injury defense attorneys, family law lawyers, and estate planning attorneys. Regardless of the practice area, every lawyer is vulnerable to a legal malpractice lawsuit at any point in his or her career.
As a practical matter, attorneys cannot control whether any given client decides to file a legal malpractice lawsuit. Every attorney can, however, reduce the risk of inviting a malpractice claim by employing a few simple but critical methods to decrease the chance of making common mistakes. Though there are many things attorneys can do to prevent malpractice lawsuits, the following five suggestions are the easiest for attorneys to manage.
1. Avoid Casual Professional Contacts
Casual professional contacts are the antitheses of sound law practice management. Those who defend legal malpractice claims are very familiar with the malpractice lawsuit in which the attorney who gave casual legal advice at the church picnic or over the backyard fence is sued for that advice.
The most obvious problem with casual professional contacts is that they do not occur in a setting that allows the attorney to receive and analyze all of the applicable facts. The casual contact is only going to share those facts that she thinks are important for the specific question she wants answered, not all of the facts necessary to offer sound advice. In addition to avoiding casual professional contacts at social functions, avoid answering questions over the telephone. The obvious concern with answering questions over the telephone is the problem of documenting exactly what was said.
Formalizing the contact with a potential client should avoid situations in which someone claims the attorney undertook representation and/or gave advice upon which the client acted. Requiring the client to come into the office and meet in a formalized office likely will generate documentation regarding the nature of the attorney’s undertaking, the advice given, etc. If approached for legal advice in a casual setting, respond by inviting the potential client to make an office appointment so that facts and applicable law can be discussed in a controlled environment.
2. Carefully screen the client and the case
The attorney-client relationship is a fiduciary one characterized by the attributes of mutual trust and confidence. Because of the trust and confidence, it is important that the attorney—not a staff person—carefully screen the client. In fact, it is below the standard of care for an attorney to delegate evaluation of a client to anyone. Clients often have unrealistic expectations regarding the legal system and lawyers, so it is extremely important for the attorney to get a good “feel” for the client.
During initial conversations with a potential client, pay attention to what the client says about her objectives. Does she seek to vindicate a recognized legal right, or does she have another primary objective, such as running up her opponent’s fees, embarrassing the opponent, etc.? Is her dispute one that can be addressed by the legal system? Does she have strong opinions about the efficacy of the legal system? If a client does not trust the legal system, he or she is likely to mistrust lawyers. Document the file with any observations made based on what the client said and consider it before deciding whether to take on the client.
In addition to words spoken, pay attention to the client’s reactions and nonverbal cues when meeting in person. Is the client’s demeanor negative or aggressive? Mind your instincts. Many lawyers who are facing a lawsuit say they or someone in their office had a “bad” feeling about the former client early in the relationship. Economic pressure may cause lawyers to take on unsuitable clients, so be aware of your first impressions.
Equally as important as screening the client is screening the case itself. Careful consideration should be given to the initial evaluation of the case before agreeing to represent a client. Obviously, attorneys should evaluate the merits of the case. But attorneys should also consider the overall economies of the case. Just as economic pressure may cause lawyers to accept unsuitable clients, so too may it cause lawyers to over-economize, cut corners and delegate too much responsibility to unsupervised associates or, worse, unsupervised paralegals.
If a case drags on for years, if it becomes acrimonious, or if things do not go as anticipated, fees and costs can increase while interest in working on the case can decrease. Statistics demonstrate that when cases become too problematic, they tend to fall to the end of the priority list, which frequently leads to disaster. When a loss of interest occurs, the lawyer will always choose other cases to work on instead of the uninteresting one. Case neglect invites legal malpractice for things like procedural delays, failure to communicate with the client and the like.
40% of legal malpractice claims deal with administrative or procedural errors that are easily avoided. The most common procedural errors that lead to malpractice claims are statute of limitations mistakes, which can be avoided by implementing checks and balances in the calendaring process. Another statute that is often missed is the deadline to file an appeal. A timely notice of appeal is often jurisdictional; if the notice is the late, the Court of Appeal is unable to consider the appeal no matter the reason for failing to file the notice on time. Other deadlines, though not jurisdictional, are just as important and can lead to malpractice claims. Missing a discovery deadline can result in a waiver of objections, deemed admissions, or bar the firm from obtaining documents or deposing witnesses.
Regardless of how the firm keeps its master calendar, attorneys should keep a personal calendar as well. Check the applicable statutes and/or the rules of court and do the calculations. Remember that even automated programs require input from humans, and humans make mistakes. When an attorney does calculations herself and compares them to the firm’s master calendar, she has just put another layer of checks and balances in place. Calendaring come-ups and reminders avoids last minute realizations that something is due and can avoid missing a deadline.
Many client problems arise from the failure of consistent communications. Avoid unnecessary problems by timely responding to all client communications. Generally, clients understand that an attorney may not be able to take a call immediately, but they do expect that calls will be returned within a reasonable amount of time, and an attorney’s failure to do so is a source of irritation for clients.
Endeavor to return calls within 24 hours. Timely returning client calls demonstrates respect and professionalism, and it also reinforces for the client that her case is important to the firm. The same is true with email; respond promptly. If an attorney is really busy and returning calls and emails is challenging, set aside a specific time of every day devoted exclusively to returning client communications.
Another effective way to communicate with the client is by transmitting copies of pleadings, discovery and correspondence. Doing so requires little if any extra work, apprises the client of work that is being done on the case, and also underscores the fact that handling the matter requires the joint attention of both attorney and client. Once such a practice is initiated, it becomes second nature.
Text messaging is becoming a means of communication with clients as more and more people buy smart phones and make themselves available at all hours. Avoid communicating with clients on substantive issues via text. It is too easy to misconstrue a text, it may require a response while the attorney is out of the office and away from the file, and it is difficult to ensure proper documentation of the communication. If a client does text, the attorney must be disciplined about documenting the file.
Confirmation is a key component in avoiding malpractice claims. Confirm statutory deadlines. Confirm calendar entries. Confirm that documents were timely filed. Confirm papers were served. Confirm instructions from the client, especially if the instructions deviate from a normal pattern or practice or if they seem counterintuitive. Confirm client consent or refusal to consent. Never assume that things were done; confirm it.
Wendy Taylor is an Elk Grove, California malpractice lawyer who defends lawyers against malpractice claims.