The failure to file an action within the applicable statute of limitations is arguably the second most common form of legal malpractice next to the failure to properly communicate with a client.
Attorneys should document all issues discussed with clients, opposing counsel and anyone else involved in the matter at issue. Documentation can be in the form of notes to the file, confirming letters or memoranda.
All attorneys should maintain errors and omissions insurance. If attorneys work for a firm, they should make certain that the firm has sufficient coverage and that the attorney is included in that coverage. By following these simple steps, attorneys
Legal malpractice is a term used for lawyer negligence and implies that there has been a breach of contract or fiduciary duty. There are many ways in which a lawyer can be held liable for malpractice, but we want to provide an overview of the most common malpractice errors. According to the American Bar Association (ABA), lawyers have a 4 to 17 percent chance of being sued every year, largely dependent upon their jurisdiction and practice area. By understanding and analyzing the top five most common claims associated with malpractice, law firms can avoid costly malpractice mistakes.
A good paralegal can help the attorney mitigate this type of error by ensuring that these sorts of filings are completed. These errors can be costly to attorney’s clients and the associated lawsuits often times have an easily identifiable, tangible cost and easily determined judgment dollar figure. Ensuring that a paralegal is aware of such filings and can keep the attorney accountable to see them through is vital to avoiding this costly error.
Planning errors are usually strategic and judgmental mistakes. It should be noted that this category does not apply if the alleged error occurs because a lack of knowledge of facts that could have been discovered by the attorney.
Most lawyers work in a silo and do not partner with or seek the guidance of other attorneys when presenting a case. The most common malpractice error, failure to know or properly apply the law, affects single attorneys most commonly, versus cases in which counsel is comprised of two or more attorneys. Taking a more team-oriented approach (if possible) can help lawyers avoid this error.
Attorneys should make sure that all possible facts are investigated and discovered in each case they represent. After an attorney assumes that they have analyzed all the possible facts , they should revisit the case and all its factors at least once more to determine if there is anything missing from their analysis to avoid this potential malpractice error.
In most areas of law practice, problems with lawyer-client communications are the number one cause of legal malpractice claims, followed closely by basic deadline and time management issues. From a claims prevention point of view, you get more for your risk management efforts by focusing on improving client communications and getting things done on time. With this in mind, here are my top tips for avoiding a malpractice claim.
If you are unsure or hesitant about handling the matter for any reason (unfamiliar with the area of law, a potential conflict exists, a matter for a relative or friend, demanding or difficult client, a lawyer on other side is a jerk), get appropriate help or refer it to another lawyer.
It’s not practical to document everything on every matter, but document as much as you can in some contemporaneous manner. Letters are fine, but emails, detailed time entries, and marginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes and major client instructions or decisions. Memorialized communications help confirm what was said or done for the client should you need to look back to explain why or what work was done, to justify an account, or to defend on a malpractice claim.
If you do these things, it will help ensure that you have happy clients and avoid malpractice claims —remember, happy clients, don’t tend to sue their lawyers!