Five Tips to Reduce the Likelihood of a Malpractice Claim
The American Bar Association reports that 4 out of 5 lawyers will receive a malpractice claim at some point during their career. Some practice areas such as residential real estate and personal injury have higher risks than other areas. However, every lawyer should implement risk management practices that reduce the risk.
Here are 5 simple things you can do to protect yourself:
1. Document Your Relationship
The most effective way to protect against a malpractice claim is to start the client relationship with a detailed engagement agreement that clearly defines who the client is and what the scope of the representation will be. If you are limiting the scope of your representation, make that clear in the agreement. For sample engagement agreements, check out Lawyers Mutual’s Attorney-Client Agreements Toolkit.
After you are engaged, be sure to document important conversations and advice that you give to the client. This is especially true for difficult clients.
If you are declining representation, be sure to send the prospective client a nonengagement letter/email making clear that you do not represent them.
At the end of the representation, send a termination of representation letter. This will make clear that you will not be taking any further action on the client’s behalf.
2. Avoid Red Flag Clients
We have all had those clients that we wish we had never accepted. Problem clients increase your risk of a malpractice claim. Do yourself a favor and just say no. Avoid prospective clients who have already gone through several other lawyers before coming to you. Don’t accept representation where a person will not be realistic about the value or merits of their case. Decline representation where a person tells you they want you to do it “cheap.” They probably won’t pay your bills. Also, avoid clients who are only hiring you to get revenge against another person or who are suing only on principle. You could be next. And finally, turn down representation if you get a strong feeling in your gut that something just isn’t right.
3. Create a Strong Docket Control System and Don’t Procrastinate
Every law firm should have a docket control system that includes universal participation (staff and lawyers), redundancy (more than one calendar), a tickler system (to remind of upcoming deadlines), and staff training to emphasize the importance of getting the correct date from the start (verify dates with documentation). Do not wait until the eve of the statute of limitations to file complaints or other time sensitive pleadings or documents. You might name the wrong defendant and find yourself outside the statute of limitations to file an amended complaint. Or something could happen that interferes with your ability to get the filing done. Give yourself time to deal with these contingencies.
4. Do Not Dabble
Rule 1.1 of the Rules of Professional Conduct prohibit a lawyer from engaging in representation in a matter where the lawyer is not competent. Every year, Lawyers Mutual receives claims where the lawyer did not have sufficient experience to handle the matter. If you don’t have experience and want to try a new practice area, you can associate another lawyer on the case. Of course, you would need to get the client’s informed consent to do this. You can also take CLE and do self-study to get up to speed. You might also want to utilize practice-specific listservs when you have questions.
5. Take Care of Yourself
Lawyers who are struggling with untreated anxiety, depression, and substance abuse issues are more likely to make mistakes. If you are experiencing any of these issues, reach out for help from the North Carolina Lawyers Assistance Program or a private therapist/counsellor.
