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AVOIDING MALPRACTICE – ARE YOU AT RISK?

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July/August 2010 Issue | Volume 36 Number 4 | Web Only Archives
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The Most Common Legal Malpractice Claims by Type of Alleged Error

The following expands on the information in the article “Are You At Risk? The Biggest Malpractice Claims Risks and How to Avoid Them,” published in the July/August 2010 issue of Law Practice magazine (Volume 36, Number 4). Archived issues of Law Practice magazine are available at www.lawpractice.org.

The following table shows the most common legal malpractice claims by type of alleged error for selected claims from both the United States and Canada. The error types are listed from more to less common for claims in the US.  The rankings for the Canadian claims are listed in a separate column. The U.S. figures come from the 2004-2007 and 2000-2003 Profile of Legal Malpractice Claims studies prepared by the ABA Standing Committee on Lawyers’ Professional Liability. These studies include data from many insurers across many states and represent 42,076 claims. The Canadian figures come from 14,782 claims reported between 2000 and 2007 to the  Lawyers' Professional Indemnity Company ( LAWPRO ), the malpractice carrier for the approximately 21,600 lawyers in private practice in Ontario.

Type of Error

ABA data

 

U.S. Ranking

LAWPRO data

 

Canadian Ranking

Fail to Know/Apply Law

4770

11.3%

1

1388

9.4%

4

Planning Error

3737

8.9%

2

316

2.1%

12

Inad Disc/Investigation

3719

8.8%

3

2084

14.1%

2

Fail to File Documents: no deadline

3636

8.6%

4

160

1.1%

19

Fail to Calendar

2825

6.7%

5

683

4.6%

8

Fail to Know Deadline

2782

6.6%

6

918

6.2%

7

Procrastination

2490

5.9%

7

653

4.4%

9

Fail to Obtain Client Consent

2293

5.4%

8

1799

12.2%

3

Conflict of Interest

2218

5.3%

9

920

6.2%

6

Fraud

2113

5.0%

10

407

2.8%

11

Fail to Follow Instructions

1832

4.4%

11

2135

14.4%

1

Fail to React to Calendar

1609

3.8%

12

289

2.0%

13

Malicious Prosecution

1593

3.8%

13

205

1.4%

16

Error in Record Search

1491

3.5%

14

267

1.8%

14

Clerical Error

1226

2.9%

15

418

2.8%

10

Improper Withdrawal

1054

2.5%

16

84

0.6%

21

Libel or Slander

774

1.8%

17

239

1.6%

15

Civil Rights Violation

705

1.7%

18

68

0.5%

23

Tax Consequences

664

1.6%

19

179

1.2%

17

Error in Math

323

0.8%

20

27

0.2%

24

Lost File & Document

222

0.5%

21

119

0.8%

20

Poor Communication

not used in ABA study*

1180

8.0%

5

Work Delegated to Employee

not used in ABA study*

162

1.1%

18

Work Delegated to Outsider

not used in ABA study*

82

0.6%

22

Definition of Type of Alleged Error*

Clerical Error: This category applies to clerical or stenographic errors as opposed to legal errors. In these cases, the basic act or omission is not that of the lawyer, but of a non-lawyer working on behalf of the lawyer. Items included would be an error in typing a legal description, the transposition of numbers, or generally the type of error which would be disclosed by effective proofreading. Not included in this category would be administrative failure to carry out the attorney’s instructions, such as a clerk not following instructions to send an item by certified mail; the category Procrastination in Performance of Services or Lack of Follow-Up would apply to such claims.

Conflict of Interest : This category will be used when the principal error is that the lawyer allegedly had a conflicting interest to that of the client. It applies whether the lawyer knew or did not know of the conflict.

Error in Mathematical Calculation : This category includes any alleged error in mathematical calculation. Examples would be errors in tax computations, real estate closing statements and interest calculations.

Error in Public Record Search : This category covers cases where a title search, U.C.C., or patent or trademark search failed to disclose a relevant item on public record, or a case where no public record search was made when it should have been. It does not include an alleged error based on inaccurate interpretation of the effect of a document or notice which was noted on the record.

Failure to Calendar Properly: This category covers the situation where the lawyer was aware of the existence of a time deadline and what it was, but did not initiate any kind of calendar entry as a reminder to himself or others in the office.

Failure to File Documents Where No Deadline is Involved : This category applies when there is no deadline by which an act has to occur to be effective, but rather where the filing of a document or notice is necessary to perfect a client’s interests against the claim of another party. A typical example is the requirement for filing of a mortgage on real estate to protect the priority interest of the mortgagee against those acquiring a subsequent interest.

Failure to Follow Client’s Instructions : This category is self-explanatory. It applies in cases where the attorney has been given instructions to follow by the client, but fails to follow these instructions either intentionally or unintentionally.

Failure to Know or Ascertain Deadline Correctly : This category includes both the situation where there is a deadline which the lawyer did not know about, and the case where there is an alleged error either in determining what deadline applies, or in calculating when the deadline occurs. If there was no calendar entry then the category Failure to Calendar Properly applies unless the lawyer made no entry because the lawyer did not know there was a deadline.

Failure to Know or Properly Apply the Law : This category applies where the attorney was unaware of the legal principles involved, or where the attorney did the research but failed to ascertain the appropriate principles. It applies in instances of erroneous reasoning from known principles. The category also applies where the lawyer simply fails to see the legal implications of the known facts, such as where the attorney knows the client has children who are not to receive anything under the client’s will, but fails to recognize the requirement that the children be mentioned in the will.

Failure to Obtain Client’s Consent or to Inform Client : This category involves cases where a client asserts that, if the client had been fully informed by the lawyer of various alternatives or the risks involved, a different course of action would have been selected. It would also apply where the lawyer should have communicated with the client and obtained consent to proceed but did not.

Failure to React to Calendar : This category would apply where the proper notations were made in the calendar system, but the lawyer failed to react to them.

Failure to Understand or Anticipate Tax Consequences : This category applies when the basis of the claim is that, in handling a matter which was not principally a problem in taxation, the attorney fails to properly advise the client or adequately take into account the tax implications of other actions. (The category Failure to Know or Properly Apply the Law also applies, but where the lack of knowledge is as to tax implications, this more specific category was used.)

Fraud : This category covers the claim where the primary cause of the action is the fraudulent acts of the attorney, whether covered by insurance or not.

Improper Withdrawal from Representation : This category applies whenever a question of representation arises. It covers instances where the claimant asserts that a lawyer-client relationship has been established, even if the attorney denies it. It also covers a withdrawal from representation improperly communicated by the attorney.

Inadequate Discovery of Facts or Inadequate Investigation : This category includes cases where the claimant alleges that certain facts which should have been discovered by the attorney in a careful investigation or in the use of discovery procedures were not discovered or discerned.

Libel or Slander : This category applies where the complaint made by a claimant alleges libel or slander.

Lost File, Document or Evidence : This category is self-explanatory, and pertains to all instances where the alleged error was due to a lost file, document, or evidence.

Malicious Prosecution or Abuse of Process : This category applies to any claim brought by a non-client for malicious prosecution or abuse of process.

Planning or Strategy Error : This category applies, for example, to a contested proceeding where a lawyer has an adequate knowledge of the facts and legal principles and makes an error in judgement as to how the client’s matter should be handled. The cases here are those involving allegedly wrong decisions where the lawyer knows the facts and law. These are usually strategy and judgement errors. This category does not apply if the alleged error occurs because of a lack of knowledge of facts which should have been discovered by the attorney, or clear legal principles which the attorney should have known.

Procrastination in Performance of Services or Lack of Follow-Up : This category applies where the delay in dealing with a client’s matter by a lawyer causes a loss even though there may not have been a formal lapse of a time limitation, or the intervention of another interest adverse to that of the client, such as the loss of a sale of business, disappearance of evidence, or loss of witnesses which occurred as a result of the lawyer’s delay. Lack of follow-up is also covered under this category. This includes the instances where the attorney has initiated some type of action, but has not followed up to make sure the necessary action is taken.

Violation of Civil Rights : This category covers any allegations made against the attorney for violation of any civil rights protected by law. This error code would most commonly arise in a third-party action against the lawyer, and would not be used when a lawyer is retained to represent a client with respect to a violation of the client’s civil rights and makes some other errors during the representation.

About the Author

Dan Pinnington is Director of practicePRO, a claims prevention initiative at the Lawyers’ Professional Imdemnity Company that helps lawyers avoid malpractice claims and practice more successfully.

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