May 31, 2016 Practice Points

Administrative Errors Are Legal-Malpractice Traps for the Unwary

Cross Your T's and Dot Your I's.

By Carey L. Menasco

Missing deadlines, drafting errors, and failing to know or apply substantive law are not the only mistakes that give rise to legal-malpractice claims. Administrative errors, seemingly innocuous at the time made, can have disastrous legal-malpractice consequences. Not only can these administrative errors give rise to claims in and of themselves, they can also muddy the facts, giving credence to what would otherwise be meritless claims.

Sloppy intake procedures often give rise to claims arising from conflicts of interest. For example, if the client is not defined or is inaccurately defined, a future conflicts search may not detect the problem. Similarly, if adverse parties are not identified, conflicts search will be incomplete. Many attorneys forget to update their intake memoranda when parties are added to an ongoing litigation matter—leaving open the possibility that such parties will not show up on future conflicts-search reports.

Other intake problems arise when the file-opening documents do not include evidence that a conflict check was performed. Should a conflict of interest later arise, plaintiff’s counsel will likely exploit the lack of documentation by suggesting to the jury that the attorney failed to perform the check because he or she knew one existed, and simply took the matter anyway, the clients’ rights be damned. Even if untrue, jurors expect attorneys to document their files, and the lack of documentation of a conflicts check may be detrimental to the law firm’s case.

Likewise, while the Model Rules do not require attorneys to send engagement letters, doing so is certainly a best practice. When sent, however, they must be done properly. They must clearly define the scope of the engagement, as well as matters that our outside the scope of the engagement. They must also clearly identify the clients, and, when appropriate, non-clients. They must also have consistent and complete statements concerning any conflict waivers to which the parties have agreed.

Moreover, once sent, it is imperative that attorneys remember to update and amend engagement letters as the matter progresses to the extent the scope of representation changes. Failing to do so gives a plaintiff’s attorney room to argue that the attorney expanded the scope of engagement as to a second matter without documenting it; therefore, the lack of an engagement agreement for matter three does not have any bearing on whether an attorney-client relationship did, in fact, exist for matter three.

Anytime a non-client exhibits any conduct that suggests he or she may believe an attorney is representing the non-client’s interests, the attorney must immediately disabuse the non-client of any such notion. That communication should be in writing. Even if others are witnesses to such communications, jurors expect lawyers to document important communications. The lack of a writing can be detrimental to any defense based on an attorney’s disavowal of an attorney-client relationship.

Billing issues also may give rise to numerous legal-malpractice claims. For example, when a non-client pays the bill of a client, and the firm accepts the payment without disclaimer, the non-client may have a basis to argue that it believed it had an attorney-client relationship with the attorney. Likewise, when an attorney represents one corporate entity, but in narrative billing entries references “conference call with clients” as shorthand for “conference call with Mr. White, CEO, and Mr. Black, EVP,” he leaves open the possibility that Messrs. White and Black could claim that the attorney was representing the interests of them, as opposed to the corporate entity. Similarly, references to work outside the scope of the engagement, such as “advise client re financial issues,” “advise client re potential tax implications,” or “advise client re business matter,” can expand the scope of the lawyers’ representation to matters typically falling outside the attorney’s responsibility.

Finally, the failure to send a letter terminating representation at the conclusion of representation can give rise to future disputes as to whether the attorney’s duties to the client to address future issues had ceased. Similarly, later actions and statements that are inconsistent with the termination of the representation can re-commence the attorney’s duty to protect the client’s interests.

Due to these risks, attorneys should ensure that administrative matters are given sufficient attention and consideration to prevent minor errors from snowballing into major legal-malpractice claims.

Keywords: litigation, professional services liability, attorney liability, legal malpractice, administrative errors, billing errors, engagement letters, intake procedures


Carey L. Menasco, Liskow & Lewis, APLC, New Orleans, LA

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).