How can you reduce the risk of malpractice claims

Calendaring errors

  • Create a two-person system with a third-party reminder.
  • Establish an office procedure for unexpected absences.
  • Calendar sufficient lead time.
  • Use the systems you create.

Client communication

  • IAY letter: “I advised you…”.
  • Document, document, document!
  • “cc” client all pleadings.

Planning errors in the choice of procedures

  • Knowing the law isn’t enough.
  • Identify the right issue to get the right solution.
  • Frame the question properly.
  • Identify the client’s goals – don’t just do what they ask and nothing else.
    • The client may not know enough to ask about other options.
    • Lawyer should explain the benefits and drawbacks.
    • Know where the client wants to be – and why.
    • Write a good engagement letter.

Inadequate discovery/investigation errors

  • SCR 20:1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.
  • ABA COMMENT
    • A lawyer’s workload must be controlled so that each matter can be handled competently.
    • Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.
      • Client may not want you to spend a lot of time on the case in order to save on fees.
      • Lawyer is busy – trusts the client provide all the necessary information.
      • If you take a case – commit to it – including investigating and verifying the facts. If you can’t make that commitment, consider not taking the case.

Failure to know/apply law errors

  • Stay current in substantive areas of practice.
  • Develop and maintain a network of referral attorneys.
    • Refer matter;
    • Refer part of matter;
    • Call for guidance.
  • Use practice aids.
  • Maintain adequate resources, including time, to undertake representation.

Client relations errors (common thread in majority of malpractice claims)

  • Communicate at the client’s level of understanding.
  • Determine the client’s expectations and encourage realistic expectations.
  • Promptly convey all developments to the client, particularly adverse developments, preferably in writing.
  • Show an interest in the client as a person.
  • Be courteous: Return all phone calls promptly; be on time for appointments; and avoid taking telephone calls during office conferences.
  • Provide client with copies of finished work product.
  • Share the decision-making process with the client.
  • Avoid personal or financial involvement with clients.
  • Respect the importance of the matter to the client, including careful guarding of the client’s confidence.
  • Solve more problems than you create.