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How To Avoid Legal Malpractice Claims

How To Avoid Legal Malpractice Claims


Sometimes, lawyers do stupid things that mess up their lives. Examples include drinking too much alcohol and getting into a car accident or helping a client orchestrate a Ponzi scheme. More often, it takes the form of something less exciting in the office that may turn out to have malpractice consequences. While talk show hosts and their psychologist guests give advice to mixed-up people who will never pull their lives together, there is much lawyers can do to improve their lives and avoid malpractice. The following are 10 useful steps to improving your practice and minimizing the chances you will be on the wrong side of a lawsuit filed by a disgruntled former client. Looking into as many different malpractice attorney practitioners is your best bet at having the strongest case within the lawsuit.

1. Remember, Appearance is Everything

Ask most lawyers whether it is more important for client relations to do a good job or appear to do a good job, and they will say doing a good job is more important. They are wrong. A lawyer who does excellent work but is perceived by the client to be a buffoon and/or a billing machine can lose a client and get sued for malpractice. Conversely, a lawyer whom the client believes has done excellent work, even though any competent attorney would know otherwise, can often dodge a malpractice lawsuit, and might even get hired again by the wrongfully impressed client. While good work and the appearance of good work usually walk hand in hand, clients do not always recognize the good work that most lawyers perform. It is your job to make sure clients recognize the good work you do – and usually that means making sure your work is not only first rate, but appears to be first rate as well. Lawyers underestimate the importance of appearing to do good work. A client who might not recognize your legal analysis and arguments are worthy of Justice Benjamin Cardozo’s praises (and probably does not know who Justice Cardozo was), will recognize a typographical error when she sees one. Accordingly, taking the time to polish a brief is critical. Make sure your work product looks professional, in addition to ensuring the content of the work product is excellent. Pay attention to the details because they separate mediocrity from excellence. Many clients remember (and focus on) details that lawyers often consider unimportant.

2. Let Your Clients Know You Care

The legal profession does not have a stellar reputation, and over the last few years, its reputation has only become worse. The public’s perception is that lawyers care about one thing: their own bank accounts. Take an interest in your client. Avoid the temptation of billing for every telephone call, even the one where your client talked mostly about his ski trip. If you find an article or a news item that might interest your client, send it to her without charge. If your client believes you are genuinely interested in him, he is less likely to bring an action when things go wrong. Conversely, if a client believes you see him as a cash cow to milk, he will not hesitate to bring an action when things go badly, whether or not such a claim has merit.

3. Return Telephone Calls

Anecdotal evidence suggests one of the primary reasons clients sue their attorneys is because attorneys do not return telephone calls promptly. Clients who pay hundreds of dollars per hour for their attorneys’ time have every reason to expect that the attorney cares enough about the client to return telephone calls promptly. There is rarely an excuse not to return a client’s call within a few hours of receiving the call and almost never an excuse not to return that call the same day. If you plan to go on vacation, warn your clients that you will be out of town and make arrangements to either pick up messages or advise clients you will return their calls upon your return from vacation (or an out-of- town trip). Try not to return calls on vacation unless absolutely necessary. If you find yourself still in the office while on vacation, you will likely create problems at home. A lawyer’s vacation is sacred.

4. Make Sure Your Retainer Agreement is Up to Date

Attorneys tend to be creatures of habit. If something has worked for them for the last 20 years, why change it? This approach to your practice does not apply to retainer agreements. The laws applicable to retainer agreements have changed over the years, and if you are still using the same retainer agreement you created when Boy George was on the “A List” of performers, you should check the California Rules of Professional Conduct to ensure your retainer agreements contain all the important terms. The failure of a fee agreement to comply with all ethical standards can result in the retainer agreement becoming void. Under certain circumstances, that can be a disaster, such as if your client files for bankruptcy and your only hope of recovering the fruits of your hard earned efforts is reliance upon an attorney lien – which may disappear if your fee agreement is void.

5. Document, Document, Document

Even in a virtual world, documentation in the attorney-client relationship is critical. Over the years, attorneys have become less meticulous about documenting advice and reports to their clients. Documentation serves an important purpose for both lawyers and clients. When attorneys spend the time to prepare a written analysis of a case, they will determine at an early stage in the case which facts and witnesses are important, the law applicable to those facts, and a proposed strategy to follow. Consequently, the client will have a roadmap and understanding of where the attorney is going, and how she intends to get there. Documentation provides a paper trail in the event of a dispute with a client, showing the facts the client told the lawyer, the legal analysis provided, and the advice the lawyer gave (whether the client followed it or not). In a subsequent dispute with a client, do not expect 12 jurors – good and true – to believe you gave certain advice to a client based on facts the client reported to you when there is no documentation supporting your position. This is not to say that every conversation must be documented. However, the key discussions should be. Likewise, you should document your client’s failure to follow your well-reasoned advice. While clients have an absolute right to disregard your prudent advice and act foolishly, many clients will have a different recollection of events when things turn out badly. While some clients will be critical of your charging them for “CYA letters,” such letters have an important purpose both for the lawyer and the client. Explain to clients that you do not have a perfect memory and it is important to document events that occurred so you do not have to “reinvent the wheel” months down the road, trying to reconstruct your strategy. Moreover, clients who are paying significant legal fees are usually happy to get letters from their lawyers reporting the facts, analyzing the issues, and setting forth a battle plan.

6. Remember that Unlike True Love, E-Mail Lasts Forever

Many years ago, Art Linkletter had a television show called “Children Say the Darndest Things,” featuring small children talking about their lives. Nowadays, we have what could be a reality show called, “People Say the Darndest Things – in E-Mail.” People often say things in e-mail they would never say in person or write in a letter. Moreover, these people – including lawyers – say things in e-mail without any recognition that these e-mails could be forwarded and, in a matter of days be circulated over the Internet. Unfortunately, the instant gratification of hitting the reply button and saying something stupid (which feels good at the time) is something most people and many attorneys cannot resist. Lawyers have probably recovered enough damages for clients based on an adversary’s e-mail to pay down the entire national debt. Always keep in mind, after you hit the send button, there is no telling where that e-mail will go, and the only thing for certain is it will never disappear. Your thoughtless response to an e-mail may one day be Exhibit 1 in your client’s malpractice case against you.

7. Be Careful When Taking on New Areas of the Law

There is nothing negligent about taking on an area in the law you have never handled before – so long as you are capable of getting up to speed in that area. While attorneys are often unjustifiably afraid of developing expertise in a new matter, it is better to be afraid than foolish. If you have never handled a litigation matter before, taking on a complex legal malpractice case involving an underlying trade secrets trial is probably not a good place to start. If you do not believe you are capable of developing sufficient expertise in a matter, do not take it – no matter how desperate you are for business. If you find yourself handling a matter where you are in over your head, get help fast.

8. Identify Conflicts

Lawyers are generally pretty good about making sure new clients they represent do not have conflicts with existing clients already at the firm or with past clients. Unfortunately, lawyers frequently fail to analyze the conflicts they may have in representing two or more clients in the same case. Whenever you represent more than one client in a matter, you need to consider the conflicts between and among them, and you must obtain informed consent to represent more than one client in a single matter. Even where you do not see potential conflicts, it is still advisable to notify your clients of the theoretical possibility of a conflict and obtain an appropriate waiver. Know which conflicts can never be waived and make sure you do not find yourself representing clients with adverse interests. If a conflict situation arises, seek immediate legal advice as to what you should do. It is a minefield out there.

9. Bill Clients Fairly

Clients are entitled to fair bills. An unreasonable bill violates legal ethics. If it is your practice to write down your time for every revision of a document, make sure you check the time entries for all of the revisions – even for prior months – to make sure you did not lose control of a project and inadvertently overbill for it. When more than one timekeeper is handling a matter, make sure these individuals are closely supervised so multiple timekeepers on a matter are not running amok and double billing. Make sure the person reviewing the bills is closely familiar with the file – not just the introducing attorney. If a bill seems too high, it probably is. Staffing most cases with more than six timekeepers will usually be difficult to explain to a jury. Staffing a typical case – even a business litigation matter – with 25 attorneys and paralegals will be extremely difficult to explain to a jury. Staffing a case with 50 timekeepers will be virtually impossible to explain to a jury, no matter how complicated the case may be. Keep in mind, in jury trials, appearance is everything, and most juries will not understand why it takes a dozen people to work on a single litigation matter.

10. If You Believe You May Have Committed Malpractice, Seek Counsel Immediately

Even good lawyers make mistakes. There is probably not a single lawyer who has been practicing for more than 10 years who has not made a mistake. Fortunately, most mistakes are either harmless or can be corrected. When a mistake amounts to malpractice, it is in your interest to contact counsel immediately. If you find yourself in a malpractice case, remember your role in such a case is that of a client, not an attorney. Attorneys who forget what role they have when they are defendants in a malpractice case usually make poor witnesses and have unhappy results at trial.

Final Thoughts

No lawyer wakes up in the morning and decides to commit malpractice. By its nature, malpractice happens by accident. However, if you take the simple steps outlined in this article, you are less likely to commit malpractice and more likely to have happy clients.

How to Avoid Legal Malpractice Claims is available for CLE credit at Attorney Credits. The course is currently available for CLE credit in the following states: Alaska, Arizona, California, Connecticut, the District of Columbia, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, South Dakota.

About the Author

A seasoned trial attorney and skilled negotiator, Mark B. Wilson has won nearly every case he has tried or arbitrated and has lost only one jury trial in which the appellate court reversed the judgment in his client’s favor. He tries cases in both federal and state courts in a variety of practice areas, including copyright infringement, construction defects (such as those a Los Angeles construction defects expert would often cover), covenants not to compete, breach of contract, attorney malpractice, unlawful detainer and personal injury. He and his partner Gerald Klein have recovered nearly $100 million in plaintiffs’ cases and have won defense verdicts in “bet the company” cases where millions of dollars were on the table. For eight consecutive years he has been acknowledged as a Southern California Super Lawyer in the areas of business litigation, construction litigation and intellectual property litigation. He is also recognized as one of the top trial attorneys in Orange County by OC Register Metro magazine and Mr. Wilson has also achieved an “AV” rating from Martindale-Hubbell. A frequent lecturer to bar organizations on modern trial techniques, he has also authored several articles on trial practice.

James Nguyen
James Nguyen


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