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The newsletter of the ISBA’s Young Lawyers Division

December 2001, vol. 46, no. 1

Risk Management Techniques in the Prevention of Malpractice

Lawyers can increase the quality of the legal services they provide and at the same time reduce the risk of possible claims brought against them by following some basic legal and ethical principles. The practice of law is diverse and attorneys in every practice area are potential subjects of attorney malpractice claims. Attorneys should be aware that even an unsuccessful claim for malpractice brought against them can cause substantial damages in terms of attorneys' fees, lost time and attention to other matters, emotional strain and reputational damages. Therefore, new attorneys will find it to their benefit to be informed as to the methods for avoiding the risk of malpractice and should encourage their firms to implement policies with respect to risk management and prevention. This article provides a few tips to avoid legal malpractice claims as you begin a fulfilling legal career.

A. Pre-retention Procedures and Preparation

The prevention of legal malpractice requires time, discipline, attention to detail and a willingness to fully implement specific office procedures designed to prevent claims.

Policies for docketing and conflicts checks should be used in every situation. First, use a centralized docketing system. Docket all time sensitive matters including filing deadlines, court appearances, deposition dates and trial dates. Keep in mind that the docket system need not be used for litigation only. Docketing can also help to successfully organize an attorney's obligations, including client meetings, self-imposed deadlines and statute of limitation dates. Second, use a personal diary system. If reviewed on a periodic basis, this system should be dedicated to promoting efficient and prompt file handling as well as providing a basis from which clients can be given a brief status report-- thus improving client relations. Third, implement a system to check for conflicts of interest, which should include a computerized data base of clients and engagements for conflict screening. Conflict of interest checking software is readily available and should be customized to the unique needs of each firm or practitioner. The system used should be accurate and up to date. Conduct a conflicts check prior to accepting every new case, and if possible, prior to an initial client screening interview.

B. Client Intake: The First Step in Prevention of a Legal Malpractice Claim

Spending extra time at the outset, when considering whether or not to take on the engagement, may reduce your exposure to a potential claim and time consuming litigation in the long run. Establishing and maintaining a good working relationship with your clients is one of the best ways to protect yourself against malpractice claims. Common courtesy, in addition to a constant stream of both written and oral communications, are key factors to good client relations.

First, consider your capabilities and experience for the engagement. A common risk management technique is to use an intake form for all new clients. Obtain sufficient information from a potential client during the course of an initial interview to determine the type of claim. Do not be rushed into giving legal advice or accepting representation.

Second, evaluate the client's financial condition and ability to pay the attorney's fees. A client's inability to pay for the attorney's fees may put a strain on the attorney-client relationship. This can result in the withdrawal of the attorney, or in a suit by the attorney against the client for unpaid fees. Often a suit for unpaid fees increases the likelihood of a malpractice suit. Along the same lines, keep in mind the effect of taking on a particular client on the attorney's practice in terms of attorney time and/or firm resources required to handle the matter, and the economic benefit or detriment to the practice.

Third, find out how and why the client has come to you. The use of your own common sense can go a long way in preventing a malpractice claim. Initially, determine whether the client had prior representation by another attorney that ended on unfavorable terms. If a potential client indicates that he or she has been unhappy with prior attorneys, you may consider that the potential gain from taking on the new client may be outweighed by the client's unrealistic expectations of her prior attorneys. Finally, if and when you find yourself in a situation where a prospective client poses too great a risk, do not be leery of simply saying declining representation.

C. Accepting the Case/Engagement Letters

If the attorney decides to accept the case, a variety of steps should be taken to guarantee that the client and the case are handled properly. First, the attorney should prepare an engagement letter to be signed by the client that clearly identifies the client; the billing, fee and expense arrangement; and the nature and the scope of the representation. An attorney should get in the habit of using engagement letters consistently. By defining the scope of your representation you will minimize misunderstandings. There are several sources available for form engagement letters including insurance companies, their lawyers, or professional societies. These forms will need to be customized for your particular situation.

Keep in mind that clients are often dissatisfied with the legal services provided because the attorney fails to meet the client's expectations. Often these expectations have been created by misunderstandings of what the attorney can or will do in a particular engagement. Do not make guarantees to a client. Offer instead to keep the client reasonably informed as to the merits of the case. Continue to advise the client as the litigation or transaction proceeds and provide the client with relevant information which becomes available. If the information affects the attorney's opinions and ultimate conclusions, the client should also be made aware of the information.

D. Providing Quality Legal Services Is the Best Way to Avoid a Malpractice Claim

Keep in mind some basic tips when you are confronted with a difficult situation during your representation of clients. First, attorneys and law firms should obtain sufficient professional liability insurance in the event of malpractice. Insurers will often have hot lines or loss prevention manuals, or attorneys to contact to answer certain questions even prior to a claim arising. Second, maintain an organized file, documenting with particularity circumstances as they arise if they are problematic. Maintain contact with your client both orally and in writing. Third, keep current on the law--make time to attend continuing legal education seminars whenever possible and share news with your colleagues about recent cases. In fact, sharing lessons learned in lost cases can often provide the most insightful information for other attorneys. Fourth, a system of checks and balances within a firm, similar to a peer review system, can be used to emphasize the importance of quality control by insuring that other attorneys, partners or members of your office or firm know how and in what manner the other attorneys are handling files.

E. Conclusion

While this article provides tips to prevent legal malpractice claims, the only good way to beat a claim is to prevent a claim. There is no sure-fire way to prevent legal malpractice. Hard work, attention to detail, and ethical professional conduct may give rise to a successful defense to a malpractice claim, and should be considered a prerequisite to an effective and gratifying legal career.


Lisa M. Sommer is a member of D'Ancona & Pflaum. The author extends her appreciation to Jara Chaikin for her assistance in preparing this article.