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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.

Knowing Your Client
This is not a biographical inquiry but rather a temperamental analysis. Of course, choosing clients is not sometimes an actual choice at all (ask defense counsel assigned cases by insurance carriers). That said, attorneys should engage in some quasi-vetting, particularly at an initial intake or meeting or during the early phase of the case.

As a starting point, one should always consider whether the client has had bad relationships with other attorneys (including filing prior malpractice suits) or had several different attorneys handle the same matter now presented. If what’s past is prologue, an attorney must anticipate that he or she may be in the client’s crosshairs. A client with the proverbial bad “history” does not mandate that the attorney has to refuse representation. It simply means one will need to advocate more sensitively, and document one’s advocacy with greater precision and invite more input or suggestions.

Crucially, learn to spot “problem” clients that (1) potentially do not have the means to pay you; (2) have cases that will require substantial resources you may not have; (3) vocalize an unrealistic goal for resolving the case or handling the representation; (4) may use the litigation for frivolous justifications, e.g., revenge; or (5) have issues that will affect your advocacy or the client’s credibility such as drug and alcohol problems or criminal conduct. Along those lines, the attorney should not remain oblivious to the client’s social-media alter ego, which can illuminate volumes about the mindset of the client.

Avoiding conflicts of interest in the representation of clients is rather rudimentary advice. See Model Rule of Professional Conduct 1.7. Clearly, it is legal malpractice to engage in representation that poses a conflict of interest. (Warning: It will be certainly self-evident to a jury in a legal-malpractice trial.) In a nutshell, never serve two “masters,” and don’t get involved in other endeavors that would undermine your duty of loyalty to the client. See Model Rules of Prof’l Conduct R. 1.8.

Even though most attorneys are knowledgeable of the ethical rules concerning conflicts of interest, attorneys may have problems identifying the conflict and dealing with the situation. Keep written documentation of all conflicts. But above all else, standardize how you identify conflicts and implement that process at the beginning of the case for all cases in the same manner. If you intend to permissibly engage in representation that can be perceived as a conflict, provide full disclosure to all clients and obtain written consent to move forward. An attorney with any reservation about a potential conflict should make a formal inquiry with a local disciplinary board for lawyers, which may give a recommendation on how to proceed. The spectrum of conflicts can range from the representation of two parties (obvious) to the representation of the opposing side of an issue even though the clients are not involved with one another—for example, “Big Tobacco” and a health-watch group (not as obvious).

Embrace the Written Formalities
An engagement letter that thoroughly defines the scope of the relationship is vital, and ideally that letter should identify what precisely the attorney will handle. When appropriate, the attorney may choose to limit the scope of representation, provided that limitation is disclosed in writing. See Model Rules of Prof’l Conduct R. 1.2. In fact, limiting the scope of representation cements the parameters of the attorney’s representation. The engagement letter should also (1) acknowledge that the client may provide more information about the case; (2) identify who will staff the case; (3) describe the circumstances in which an attorney can terminate the representation; (4) detail whether appeals will be subject to the engagement (where appropriate).

A formal writing should be part of a file even when the attorney decides not to retain a case. See Model Rules of Prof’l Conduct R. 1.16. This so-called “non-engagement letter” is not superfluous. While stating clearly that the attorney is not assuming representation, the lawyer may confirm other “talking points” such as a running statute of limitations, any explanation for declining representation, and the return of case documents. If the would-be client ever contends that the lawyer agreed to handle the case or otherwise assume some responsibility, the non-engagement letter can help support that the lawyer had no further duty to act.

If the attorney finds himself or herself seeking to withdraw representation, a disengagement letter is crucial. That letter may discuss the reason the relationship is terminating and whether any fees are outstanding. Timing may be everything as disengaging representation prejudicially to the client could expose the attorney to a future claim. For example, it is inviting problems to withdraw just days before the statute of limitations expires on your client’s claim if that client has not been allowed ample time to find substitute counsel.

Lastly, remember the adage “all is well that ends well.” In other words, consider a formal termination letter to bookend the initial engagement letter. This letter should discuss that the attorney-client relationship is over and confirm the result of the representation and any further activity that may need addressing. The letter should invite the client to communicate any questions or concerns about the relationship ending. The termination letter should sever any duty the attorney once had to provide legal representation in any further matters potentially unaddressed.

Client Expectations
Even the best advocacy can engender client disappointment and resentment. In areas such as family or criminal law, the cases may be infused with high emotions that make the client even more demanding. The client will inevitably conflate “losing” (often a relative term) and substandard representation. The lawyer must delineate that distinction from the onset of the representation.

The attorney should never guarantee a successful result or set unreasonably high expectations. Nor should the attorney equate past success with the likelihood for a great result in the instant matter. The attorney should be brutally honest and objective with the client about the merits of the case. Discuss the strengths and weaknesses of the case and the reasonable best- and worst-case scenarios. The attorney should temper his or her emotions in front of the client and allow the client to verbalize disappointment anytime, which can then be appropriately countered. Invite client input periodically (in writing, of course) because a client’s opinion and expectations are dynamic. If one keeps the client informed as to the status of the matter and lets the client know of any important developments, one can better manage expectations and avoid the perception that the end result was shocking or disappointing or that the attorney “sold out” the client.

“The single biggest problem in communication is the illusion that it has taken place.” That quote could have been extracted from a tutorial on why attorneys sometimes fail their clients. Communication is not merely about returning a client’s phone calls (although one should certainly do that). Attorneys are ethically bound to keep a client informed about the status of a matter. Model Rules of Prof’l Conduct R. 1.4. But extending this to shielding oneself from a potential malpractice suits means ensuring that the client feels important by (1) sending written status reports on a regular basis; (2) revisiting strategy and client goals periodically in writing; (3) explaining delays; (4) explaining how parties approach settlement; and (5) explaining legal documents, including any that may contain boilerplate language the client may now have read before. If a case involves mediation, the client should know that there is always a choice to settle and that no one—especially his or her own lawyer—will preclude him or her from voluntarily settling the case.

Legal procedures should be explained in simple language. Equally important, relay that cases never resolve overnight. Detail the time frame for possible resolution of the case. Significantly, if an attorney has made a mistake, he or she should not hide it. This decision could rise to fraudulent concealment if a malpractice suit is filed. Even if the attorney can repair the error, he or she should disclose it while taking steps to rectify the mistake.

Fee Disputes
Consider closely whether you need to sue the client to recover fees for the work you performed but that are outstanding. Bringing such a suit invites a compulsory legal-malpractice counterclaim by the client, who may potentially feel defensive and attacked. In a vast majority of fee disputes, the attorney ends up dropping the suit to extinguish the malpractice claim. The counterclaim may seek many times the amount of fees the attorney is seeking. The attorney must consider what effect such a counterclaim could have on his or her practice, reputation, and insurance premiums. To avoid initiating a fee dispute, have sound fee agreements with detailed and regular billing statements. Crucially, the attorney should explain the projected fees and costs with each client and not accept clients who appear they may not afford the expense. The attorney should never allow fee disputes to continue until the representation is completed. It may become impossible to resolve the dispute if the bills increase significantly during the timeline of the case.

“The trouble with law is lawyers.” Clarence Darrow was not speaking about malpractice claims but he might as well have been. After all, the “mal” in malpractice means “bad” in Latin and “bad practice” is easier to expose. But if the sloppy lawyer is the problem, the prepared lawyer is the solution. When one considers the drain and disruption of facing a legal-malpractice claim, not to mention the impact on one’s malpractice premiums, some preventive care outlined above should be adopted into a standard model of practice.

The point of emphasis for the attorney should be dually on extrospection and introspection. Indeed, pay attention to those factors outlined above that are vital to avoiding the wrong side of the “v.” in a legal-malpractice lawsuit. But one should be equally courageous to take a step back and pay attention to one’s professional instincts regarding a client or a case, even if that means refusing representation or severing the attorney-client relationship and forsaking a little business.

By recognizing malpractice risk and implementing prevention procedures, an attorney can minimize his or her exposure to a legal-malpractice lawsuit. There is an increasing fetishization of “winning” for the client that is disproportionately weighted. Of course, an attorney’s work for a client should be profitable and meaningful, which are sentiments extracted from victory. But above all, embracing some of the tips above should remind the practicing attorney that in striving to obtain an outcome for his or her client, his or her legal work should be comprehensive and good.

Keywords: litigation, professional services liability, legal malpractice, preventive strategies, client relations

Saleel V. Sabnis is an associate of Goldberg Segalla, LLP in Philadelphia, Pennsylvania.

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