Notice the title states avoiding not preventing attorney malpractice claims. Every attorney I know complains about the rising cost of attorney malpractice insurance. This is especially true for the attorneys that started practice in the 70’s and 80’s. Back in the day the chances of being sued for malpractice insurance during one’s career were slim to none. But for attorneys practicing in 2018, the chances of ending ones career without ever having a malpractice claim brought against them are almost zero. This unfortunate fact has led to a continual increase in legal malpractice insurance premiums.
But there are things that attorneys can do to reduce their chances of having a malpractice insurance claim brought against them. Or at the very least if one is brought to reduce the impact on one’s career and finances.
1. Always Perform conflict checks—Preform conflicts of interest checks on all incoming matters. Document these checks when setting up the file. Conflicts of Interest are a leading malpractice claim cause.
2. Be Competent—Don’t take on matters that you or your firm has no expertise in. Make sure that at client intake that you set up the proper diaries and deadlines. And adjust as needed. Know when to say ‘No’.
3. Good Client Communication—Read our July 23rd blog "Prevent Attorney Malpractice Claims with Good Client Communication".
4. Document, Document, Document—Anytime you communicate with the client, make sure that you document the file. Anytime you communicate with a 3rd party on the file, document the file. Anytime that you receive documentation document the file. When doing relevant research document the file. When determining a course of action for the case document the file. In your zeal to document make sure you know what you have documented sounds like when read by a 3rd party likely out of context. You will be much happy in the long run if a couple of years later when you are compelled to remember why you did something in the heat of a malpractice claim. A well-documented filed is the best defense to a malpractice allegation.
5. Always use engagement/disengagement letters. Part of the client setup must include a properly executed engagement letter signed by the client that outlines what you were hired for and the expectations on the engagement. If you decide not to take the engagement make sure you have a properly documented non-engagement letter in the file. For further information read, “Why do Attorney Malpractice Carriers Want non-engagements disengagement letters,”
6. Keep detailed time records—Client invoices and billings continue the communication process and also become part of your body of documentation by showing specific activities that took place to address the client engagement. Even if you are working on a contingency or it is a referred to another attorney for a fee, these records could be essential to you in later years.
7. Sue clients for fees at your Own Risk—Even though every attorney wants to be paid, think twice before suing. Suing clients for fees is one of the leading causes of malpractice claims. Also read “Suing Clients for Unpaid Legal Fees Costs You "
8. Have docketing system—All relevant dates need to be entered into a docket control system that all responsible people in your organization can access. Docketing starts with client intact/setup and ends with the client file is closed.
9. Continue with your education—Even if your state does not require continuing legal education (CLE) there are continuing developments in the law and the world you work in that you need to keep abreast of.
10. Beware of Cyber Thieves—A recent conference identified Cyber-attacks as the number one risk to law firms. Make sure that your firm has adequate cyber procedures in place and the staff receives continuing education on the cyber risks that your firm faces daily.
11. Maintain malpractice insurance and cyber insurance—The likelihood of a claim happening to you during your career is close to 100%. Make sure that you have and maintain the insurance protection that you need if a claim happens. While many malpractice policies contain some cyber protection, it is likely not enough nor is it broad enough to address the types of cyber claims that you may face.