While legal malpractice claims may not be commonplace for lawyers, according to the American Bar Association attorneys in private practice have a 4-17% chance of being sued for malpractice each year. There is no iron-clad solution for preventing malpractice claims; however, there are several steps you can take to help prevent suits which can result in costly and time-consuming legal battles.
1. USE A CALENDAR SYSTEM AND MEET ALL DEADLINES
Missing deadlines is the leading source of legal malpractice suits. Failure to calendar, failure to respond to a calendared item and improperly calendaring a deadline all lead to missed deadlines. OAMIC requires a dual calendar system, preferably an office wide calendar which functions as part of case management software. Fortunately, our partnership with Clio allows us to offer our members a discount on the world’s leading cloud-based legal practice management software.
2. CLEARLY DEFINE THE SCOPE OF REPRESENTATION
Be sure to present your clients with an Engagement Letter or Client Contract that specifies the legal services you’ll be providing. Including an outline of your fee agreement can also help to establish client expectations and avoid hard feelings down the road.
3. AVOID “PROBLEM CLIENTS”
Some clients may have issues which make it difficult to render effective legal services, or they may present signs that they are more likely to file a malpractice suit. There are several red flags that can help you identify problematic clients, including:
- The client has attempted to hire multiple lawyers to represent them, but maintains that none have been effective. Beware of clients who seem convinced that the legal issues they face have resulted from ineffective counsel.
- The client has a history of filing malpractice claims against other attorneys.
- The client has previously filed complaints with the Oklahoma Bar Association. If you are concerned about a client, you can contact OBA and check to see if they have filed any previous complaints against Oklahoma lawyers.
4. PROCEED WITH CAUTION WHEN OUTSIDE NORMAL AREAS OF PRACTICE
You have undoubtedly developed familiarity with several areas of practice over the course of your education and career. However, don’t feel obligated to accept a case which falls outside of your normal area of practice. Don’t be afraid to involve another attorney who may be more familiar with the relevant statutes and precedents of such an area, or to refer a prospective client to another such attorney. You may miss out on some client fees, but in the long run it will likely save you time, money and the headache of dealing with possible bar association complaints against your practice.
5. AVOID CONFLICTS OF INTEREST
Put in place a method for identifying all possible conflicts of interest for your office. It is important to be as objective as possible. If there is any chance that your representation of the client could be negatively impacted by duty to another client, duty to a former client, or by your own personal interests, you should steer clear. Blatant conflicts of interest are the toughest to defend, so avoid these common pitfalls:
• Don’t accept a personal stake in a deal as compensation
• Be ever mindful of who you are representing
• Consider who you should reasonably foresee might rely on your work
• Don’t become personally involved in a client’s business interests
6. DON’T OVER PROMISE
While it may be tempting to express your confidence in the case to a client, and while so many clients want you to tell them what the outcome will be before the case even gets started, attorneys need to avoid representing certainty in any specific outcome in advance.
7. PUT IT IN WRITING
Don’t rely solely on oral conversations with your clients. Summarize any oral conversations in writing to seek clarification and get written confirmation before taking any action. Misunderstanding a client’s instructions or wishes following a verbal discussion could make you vulnerable to a malpractice suit, so memorialize important points in writing and keep meticulous records.
8. ESTABLISH A CLIENT COMMUNICATIONS PROTOCOL
If it takes too long to return a client’s calls or if you fail to keep them apprised of the situation it could also negatively impact your case or leave your clients feeling ignored. To avoid malpractice claims arising from failure to communicate in a timely manner, establish an office-wide communication protocol specifying expected timelines for attorneys and/or their staff members to return client calls and make them aware of case developments.
We are always ready and willing to assist our insured lawyers in any legal malpractice suit brought against them. However, learning to avoid these common problem areas can help reduce the frequency of claims, keeping premiums low for yourself and all other OAMIC members.
Author
Phil has been at OAMIC since 1989 and has served as president and CEO since 1993. He is past-president of the National Association of Bar Related Insurance Companies (NABRICO) and currently serves as secretary of the organization. He also serves as secretary of the Bar Plan Surety & Fidelity Company, is a board member of the National Association of Mutual Insurance Companies (NAMIC) and is a member of the Professional Liability Underwriting Society (PLUS). Phil has a Bachelor’s degree from Central State University (now University of Central Oklahoma) and is chair of the Edmond Economic Development Authority.