November 11, 2014 Articles

Taking Preventive Care to Avoid Legal-Malpractice Suits

Recognize malpractice risk and implement prevention procedures.

By Saleel V. Sabnis

Our society leans toward dealing with problems only after they happen rather than investing time up front to prevent their happening in the first place. We spend more resources on storm relief than on storm preparedness. Likewise, we spend enormous sums on treating disease, while failing to tip the scales in favor of primary care and prevention. Preventive strategies are an anathema because we are better wired for problem solving and you don’t have a problem until, well, you actually have a problem.

The mentality is not lost in the practice of law as it relates to addressing an attorney’s worst nightmare, the dreaded legal-malpractice lawsuit. A lawyer’s plate is typically full. We want to keep our existing clients happy. We want to woo potential clients. The practice of law in one’s respective fields is cyclical, allowing little time for self-evaluation. Putting the most rudimentary malpractice scenarios to one side (e.g., allowing the statute of limitations to expire), lawyers usually assume that they have provided competent and diligent representation and have sufficiently protected their client’s interests. That is, until they have to dredge their old file from storage to remind themselves “Who is this suing me?” What crystallizes is anxiety, second-guessing, and self-doubt.

The process of avoiding malpractice claims begins before you enter into an attorney-client relationship. Of course, there is no panacea to keeping your name out of a legal-malpractice-suit caption. The reality is that legal-malpractice defendants have no profile. Bad lawyers get sued, of course, but so can exceptional ones. A significant percentage of legal-malpractice lawsuits at last tally are about administrative considerations (not calendaring internally), planning errors, and client communication as much as attorneys failing to know the law. Newer data would indicate that legal-malpractice claims are on the rise in recent years as are the sizes of judgments. The issue of preventive care therefore is never moot.

The issues and tips discussed below are suggestions to avoid legal-malpractice claims. These tips will not provide absolute immunity from such lawsuits nor is this an all-inclusive list. The suggestions may also assist with enhancing your relationships with your client. After all, satisfied clients do not file legal-malpractice suits.

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