American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1998
© American Bar Association. All rights reserved.

More Defense Against Malpractice Claims

BY BARRY BACH

A myriad of potential malpractice-producing situations confront lawyers on a daily basis, and there is no way to protect against all such situations. But there are sure-fire ways to organize and operate your practice to maximize your avoidance effort.

Rules and Statutes

It is impossible to overstate the necessity of maintaining a good working knowledge of the rules of professional conduct and of the statutes that govern the practice of law. If a lawyer wants to chart a safe course through the minefields that exist in the practice of law, a working knowledge of the rules of professional responsibility and the statutes governing the practice of law is critical.

Far too many lawyers have been told about these rules and statutes but have not taken the time to learn them. While strict adherence to those rules and statutes cannot always guarantee a lawyer will not be sued, departure from those rules will at a minimum lay the groundwork for such a claim.

Needless to say, an absence of knowledge precludes recognition of a potential problem. However, even armed with the knowledge and the ability to recognize an issue, the application of these strictures to a particular set of facts is frequently an equally daunting problem. Interpretations of the rules are not always simple. Rather than seek help in applying the rules to difficult factual scenarios, too many lawyers resort to self-help.

This is a major mistake, since there are many available resources to help lawyers interpret the rules, including many local and state bar association ethics hotlines and the ABA ETHICSearch resource. State entities charged with enforcing the rules are also generally amenable to offering guidance to lawyers who seek help concerning the proper interpretation of the rules. Knowledge of the rules, recognition of the issues, and research can save a lawyer a deductible on an insurance policy and continue the lawyer's insurability. If you haven't done so recently, it certainly won't hurt you to go back over these rules.

Be Candid with Clients

Malpractice claims frequently arise from uninformed clients whose frustration at their lack of contact with their lawyer is topped off by an unexpected and disappointing result. Clients who have been kept informed of and consulted where necessary about all developments have a feeling of participation and partnership with their lawyers that makes it difficult for many to focus blame solely upon the lawyer when the outcome is disappointing.

Do not create unreasonable expectations on the part of clients. One of the most difficult situations that confronts a lawyer is dealing with clients whose lofty expectations have been dampened by the results counsel's legal services have wrought. Unhappy clients are the fertilizer from which malpractice claims sprout. Remember, hyperbole can lead to hysteria, and dissatisfaction on the part of a client can lead to hurt for the lawyer.

Don't exaggerate the positive in an effort to curry favor with your new (or old) client. Such favor is rarely long-lived. Provide a balanced assessment of the merits of a client's cause after having obtained all of the facts necessary to make an informed decision. Let the client know if developments require a change in your assessment.

Be absolutely candid with a client. A lack of candor on the part of counsel to a client is grist from which malpractice claims are made. This is not to suggest that lawyers aren't candid. It's not always easy to explain to a client why a promised action was not taken. In this age of "spin," many lawyers tend to provide a more positive view of their actions in a case than the circumstances warrant. They may also tend to omit conveying important information. Once the true picture is developed, however, the client is less likely to become frustrated.

Remember, two plus two should equal four. Employ accepted methods of accounting in the operation of your office. As the body charged with enforcing your jurisdiction's particular rules of professional responsibility will attest, one of the most dangerous pitfalls for a lawyer is to set up and/or run a law office without a clue as to either the bookkeeping and financial procedures mandated by the rules of professional responsibility or accepted accounting procedures.

It is surprising how many lawyers who practice law do not adhere to proper bookkeeping procedures, much less the rules and statutes governing the handling of client funds. Improper handling of a client's funds, whether on purpose or inadvertently, will almost invariably lead to a claim. Either get an accountant or contact your local bar association, your bar counsel, or the ABA if there is the slightest question as to the proper procedures for handling client funds.

Recognize Your Own Limitations

While perhaps easier to say than to do, particularly in financially difficult times, it is absolutely essential that a lawyer evaluate every matter brought to them and determine whether they are competent to handle it. Lawyers frequently hate to (don't) allow any business to walk out the door.

The truth is, if you don't either refer matters that are beyond your competence to counsel who do have experience in the requisite field, or become affiliated with a lawyer who is competent in the field required, the pot at the end of the rainbow may not be filled with gold. Far too many malpractice claims arise from intrepid lawyers who handle matters beyond theircompetence.

Keep Learning

Current legal knowledge is not only essential to the effective practice of law but also to the avoidance of malpractice claims. Attend continuing legal education courses. The cost attendant to participation in CLE is a mere pittance when compared to the cost of even one malpractice claim.

Never Sue a Client

Last but not least, never, never, never sue your client over a fee or otherwise. Nothing (that's nothing) will precipitate a malpractice claim quicker than filing suit against your client. If you are bent of filing such suits, be prepared for the inevitable malpractice counterclaim.

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