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Avoiding Legal Malpractice


As law firms are forced to trim staff and seek work outside of their core areas because of the hard economic times of 2009 and 2010, malpractice claims will increase.  Rather than bemoan the nature of the situation, the purpose of this article is to identify 10 basic steps that lawyers and law firms can take to avoid or mitigate exposure to malpractice claims. 

1.                  Eliminate Unrealistic Expectations

Obviously, lawyers want new matters.  Large firms compete for large clients, large transactions, and large lawsuits.  Smaller firms do exactly the same thing but in different order of magnitude.  Promises of performance, while necessary to attract clients and “close the sale,” can end up being a lawyer’s worst enemy if not handled with care.

False representations of ability or experience will create claims of fraud.  Representations of probable success will be used in the event of failure or a lesser success to warrant either a malpractice case or, at the very least, a fee dispute.  Therefore, do not create an unrealistic expectation. 

Your predictions or promises should be identified before meeting with the client, limited to facts that are clearly understood, and realistic.  Simply stated, overpromising, particularly when in writing, combined with underperformance, is the equivalent of a confession.  Both the lawyer and the client win if unrealistic expectations are avoided.

2.                  Keep Your Clients Well Informed (and In Writing).

Lawyers are in the business of communicating, yet sometimes we are terrible in keeping our clients informed.  In a digital age, forwarding documents, letters, and emails electronically is efficient and inexpensive. 

Communicating with clients has the combined purpose of keeping clients well-informed (which avoids surprises) and enlisting the client as a partner in the handling of a legal matter.  When the client is involved at every step, the likelihood of a client complaint will become significantly diminished.

3.                  Plan Your Path in Detail.

Well-experienced lawyers know what they need to do in order to achieve the desired result.  A detailed plan will avoid misunderstandings, both internally and with the client.  It will allow critical analysis to occur when there is time to reflect on alternatives.  When the unexpected occurs, and it always does, an advance plan allows lawyers to adjust rather than simply react. 

4.                  Staff and Supervise the Matter Correctly.

Recently, I had breakfast with a good friend, a partner at a law firm who shared this story.  A mid-level partner was working on a number of lawsuits.  That lawyer was working independently and appeared to be efficient.  When asked by the senior partner how everything was going, the mid-level partner always answered “just great.” 

One day, the mid-level partner resigned.  Two weeks later, the senior partner addressed the departed mid-level partner’s files.  The senior partner discovered that everything was not “great.”  Deadlines had been missed.  A number of cases were on the eve of dismissal.  Only by a herculean effort by other lawyers was the law firm able to avoid the catastrophe that was set to occur as a result of the departed lawyer’s behavior.

As each matter comes into your firm, identify its staffing requirements.  If you do not have the resources to handle the matter, or cannot acquire the resources through strategic alliances, or the resources are too expensive, reject the matter.  The key is to match the needed work with the right people who can dedicate the appropriate time.  Then carefully supervise the work as it is done.  You cannot rely on answers that “everything is just great.”  Rather you should have rigorous and in-depth reviews of the work being performed.  You should satisfy yourself that work is completed as contemplated and that the required steps are being taken. 

5.                  What Are You Missing?

We tend to be creatures of habit.  Often we do things in exactly the same way.  We rely upon repetition as our protection.  While repetition will not get you into trouble, failing to do what you should have done will.  In every matter, you should specifically focus on new and alternative ways to address the problem.  Identify any additional thing that is needed but may not be apparent.  Then complete the task.

6.                  Pretend You Represent the Other Side.

Another way to approach what you are missing is to look at your case from the viewpoint of the opponent.  In an ideal world, everyone would be open, completely cooperative, and hide nothing.  Unfortunately, we don’t live in an ideal world.  Therefore, the best way to learn what you’re missing is to create a phantom internal team to represent your opponent.  It is helpful to have a fresh set of eyes analyze what they would do if they represented the other side.  These new lawyers will allow you to anticipate strategies that may not be apparent to you. 

7.                  Don’t Be Afraid To Get Assistance From More Experienced Lawyers.

This point is self-explanatory.  Even the most experienced lawyer can learn something by talking with colleagues about a problem. 

8.                  Try to Maintain a Good Relationship With Your Client.

Sometimes over the course of any representation you learn that your client has personality traits that you consider unattractive.  You may wish that you never accepted the client in the first place.  While dealing with such a client may be hard, you are better off trying to keep a good working relationship than not.  Following stressful moments, strive for reconciliation.  If you are unable to do this, you have a problem client.  Any problem client who is personally frustrated with you may become the ideal plaintiff in a legal malpractice action.

9.                  Keep Your Charges Fair and Reasonable.

Review your bill.  Simply because you spent the time doesn’t mean that you should charge the client for this time.  Instead, ask yourself a basic question:  are your charges fair and reasonable?  If the client was someone close to you, would you consider these charges appropriate?  If the charges are not fair and reasonable, adjust them.  More legal malpractice claims arise out of fee disputes than any other cause.

10.              It’s not over until it’s over.        

Lawyers run out of gas.  Some lawyers simply lack the energy to complete the case and as the end approaches, their efforts taper off.  They watch as a more invigorated opponent keeps going and passes them by.  Your client will see the same thing.  Therefore, always remember that no matter is over until it is over.  Keep your commitment at the same level on the last day as it was on the first day.

            I hope these ten pointers will assist you in your daily practice of law.  If you follow them, your chances of being exposed to legal malpractice claims should be dramatically reduced.

Andrew C. Hall is the managing partner of Hall, Lamb and Hall, P.A., a Miami-based law firm specializing in complex corporate, business and securities litigation.

© Hall, Lamb, Hall & Leto, P.A. 2018. All rights reserved.