- Mitigating the Risk of Malpractice

By Justin Kesner

“Lawyers must constantly be on the lookout for conflict of interest situations, which can arise from any number of circumstances.”

High on the list of concerns for lawyers is the potential for a malpractice claim, particularly for small to mid-sized firms and independent attorneys whose efficiencies may be taxed by an excess of work and a lack of administrative support.

Malpractice insurance has become one of the most important purchases a lawyer can make and should be in place prior to accepting clients. By having professional liability coverage, an attorney can rest a little easier, but as is the case with all insurance protection, the bottom line is to avoid being sued. There are a number of causes regarding lawyer malpractice. Some are obvious while others are more subtle.

Missing deadlines is one of the most common causes. An inefficient diary system or failure to act on a timely basis may be at the core of this significant problem. Conducting inadequate research and investigation are two other sure-fire ways to send out a signal of inadequacy. Sometimes, these failings can be blamed on a lack of technological systems and savvy. Lawyers who do not keep up with advances in the use of technology can do their practices more harm than the occasional missed deadline. If technology is not used effectively for research and file management, an attorney could be perceived as willfully less competent than other lawyers, which is a legitimate cause for a malpractice proceeding.

The practice of law is stressful by nature, sometimes resulting in overworked attorneys who produce substandard results.

Lawyers must constantly be on the lookout for conflict of interest situations, which can arise from any number of circumstances. The importance of identifying and avoiding conflicts of interest when undertaking representation can’t be stressed enough and should be an easily identifiable alert featured in a firm’s intake system.

Retaining clients may be at the heart of a thriving law practice, but selective representation must be considered. Some prospects send out a signal that they are probable sources of malpractice litigation. While every lawyer likes to bring in new clients, non-engagements should be considered when approaching statute of limitation deadlines and having to rush court filings without the appropriate time to analyze the case. Think twice about retaining clients who will not discuss fees or pay a retainer; can’t effectively communicate what they want you to achieve; pressure you into making them your one and only priority; or have worked with other lawyers besides you on the same matter.

All malpractice claims begin with an unhappy client and the top reason is often simple failure to provide good customer service. This is where communication skills become pivotal in protecting your practice and reputation. Conversations between professionals and their clients should always focus on the issue, intent and desired outcome of the client. Without this trio of knowledge, a lawyer cannot fully provide required services. However, communication is a two-way street. An attorney must also inform the client in clear, straightforward language, what to expect, thereby helping to diminish or eliminate the chance of an unrealistic result.

It’s not just a perception of conflict – it is in fact a legitimate conflict if a lawyer becomes a business partner with a client in addition to being a professional adviser. It’s wise to avoid any and all inappropriate involvement in a client’s occupation or taking equity in their business ventures in lieu of legal fees.

Overzealous efforts to collect a fee could trigger a desire in a client to flip the script. Receiving compensation for services rendered is important, but resolutely litigating unpaid bills often prompts a counterclaim, which must be reported to your malpractice insurance carrier. Suing for a fee is not recommended.

While no lawyer wants to be on the receiving end of litigation papers, an unwillingness to believe you might be sued is naiveté in its purest form. No one is immune from legal action, even attorneys whose long careers have earned them untold accolades. Harboring the illusion that you are impervious from a malpractice claim could result in a very rude awakening – one that could turn into an extended nightmare.

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