Avoiding Legal Malpractice
As South Florida’s legal landscape changes in a post-recession economy, I wanted to identify 10 basic steps that lawyers and law firms can take to avoid or mitigate exposure to malpractice claims.
1. Eliminate Unrealistic Expectations
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, over promising, 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.
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. When and if the unexpected occurs, 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. 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.”
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. It is helpful to have a fresh set of eyes analyze what they would do if they represented the other side. Talking with other 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. 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. A 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 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. 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.
By Andrew C. Hall
Hall, Lamb and Hall, P.A.
2665 S. Bayshore Drive, PH 1
Miami, FL 33133
South Florida Legal Guide 2014 Edition