Risk Management Best Practices for Attorneys
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Attorneys want to do everything they can to protect their law firms. But where to begin? Read on for best practices to help prevent or mitigate legal malpractice claims.
1. Properly screen clients.
When we talk to our policyholders who have been sued for legal malpractice, they often say that they knew from the first meeting that a client was going to be a problem. A client screening checklist is a useful tool in vetting prospective clients. For example, ask if the individual has had multiple previous attorneys. Assess if he or she has unrealistic or irrational expectations, and/or veracity or credibility issues. Also, evaluate if he or she will have the means to pay your bill. In making your assessment, be objective with your criteria. Do not let the possibility of a big payout cloud your judgment.
2. Do not dabble.
Being a jack of all trades may be a great skillset for a handyman, but it is probably not the best job description for a lawyer. Some areas of law are very complex and a lawyer who dabbles may not fully understand the nuances. For example, an attorney who drafts a "simple" will may not appreciate the tax ramifications that will result upon the testator's death. If you are asked to represent a client in an unfamiliar area, consider a referral to a specialized practitioner. If you do decide to take on the representation, make sure you are fully cognizant of the law.
3. Use engagement letters.
Many of the attorney malpractice claims we see involve the scope of engagement. When there is no engagement letter in the file, it is very difficult to maintain that the attorney was not retained to perform certain services. The engagement letter should define who the client is (and is not), the services that are within (and outside) the scope of engagement, and the agreed upon hourly rate. After the engagement is memorialized, the services ultimately performed should comport with the document. If the engagement changes, make sure you do an updated letter.
4. Use closing letters.
Just as crucial as the engagement letter is the closing letter at the end of the representation. This letter will confirm that work has now ceased and that the current client is now a former client. Closing letters are very important should a legal malpractice case later be made as they will usually trigger when the statute of limitations begins to run. Don't leave it up to the client to assume that you are no longer representing him or her.
5. Communicate with clients.
This tip sounds so obvious that we hesitated to include it. However, many claims we see emanate from clients who say their attorney did not return phone calls or otherwise keep them advised as to the status of their case. Further, neglect is one of the primary, if not the top, reasons for bar grievances across the US. Make every effort to be responsive - returns phone calls, respond to emails and update your availability. A client who feels ignored may be more likely to make a malpractice claim.
6. Practice regular monthly billing.
The most preventable basis for client fee disputes is untimely billing, particularly when sizeable bills are sent late. Be proactive and discuss any big-ticket items with your clients, and then send invoices out on a timely basis. Further, strive to get a realistic retainer at the onset of representation, so that you are not having to constantly follow up for payment. An unpaid bill can drive a big wedge between an attorney and client.
7. Limit texting with clients.
It is perfectly acceptable for lawyers to set up appointments, confirm court times and respond to simple questions via text. However, if a client asks a detailed question, responding via text without time for proper research and reflection may not be the best idea. Further, your text messages may not be properly encrypted and preserved. Finally, please maintain a high level of professionalism in all of client communications regardless of the medium. Do not let a misguided text message give a client ammunition in a legal malpractice case.
8. Practice wellness.
The National Task Force on Lawyer Well-Being has revealed that the legal profession is suffering from a host of difficulties including problem drinking, depression, anxiety, social alienation and stress. The Task Force made a number of recommendations for the legal industry, including taking steps to "place health, resilience, self-care, and helping others at the forefront of what it means to be a lawyer." As legal malpractice professionals, we know that many of the claims that we see are related to wellness issues. We urge you to download the Well-Being Tool Kit for the Legal Profession from the ABA website for great tips on making wellness a part of your everyday routine.
9. Don't ignore your mistakes.
Even the best attorneys can make mistakes. Should an error be made, do not put your head in the sand and hope it goes away. Not only do you ethically need to advise your client, you should also contact your malpractice carrier. An experienced claims professional may be able to help mitigate or rectify the mistake. Do not wait until a lawsuit is filed to contact your carrier.
10. Document your file.
Keeping a written record of what transpired during a client representation is crucial in the event a legal malpractice claim is made. Once an agreed plan is made, document the plan throughout the life of the file via letters, emails and detailed billing statements. Be especially sure to document the client's acceptance/rejection and understanding of your advice. The lack of a paper trail can lead to a he said/she said situation in the event of a legal malpractice claim. Proper documentation will keep your client relationship on the right track as well as help you defend against malpractice allegations.
While we can never eliminate legal malpractice claims, proper risk management will serve to reduce or mitigate your chances of being sued. Questions? Contact us today!