December 16, 2014 Articles

Risk Management for New Associates: Tips to Avoid Legal Malpractice Pitfalls

By Shari L. Klevens, Alanna G. Clair, and Michaela C. Kendall

The first few years of practicing law can be intimidating. New associates may be tossed into the pool before they can swim. Moreover, the focus for most new associates, and the partners who manage them, is on developing and improving new associates’ basic legal skills such as research, writing, and civil procedure. While these skills are critical aspects of becoming competent in the field of law, there is another critical skill set that should be part of new associates’ early training: risk management and claim avoidance.

Many new associates think that risk management and claim avoidance are issues reserved for partners and senior attorneys. This misconception can put the new associate, the firm, and the client at risk. Instead, new associates should be aware of how they can prevent malpractice claims, and how they can spot potential problems and risks. This article provides several tips for associates that apply when an attorney first joins a law practice, as well as after the attorney has worked for a few years, to help the attorney learn how to identify, prevent, and mitigate professional risk.

Getting Started
After law school, many graduates begin practicing law at a law firm. The first couple of years are spent learning a specific field or fields of practice, the expectations of the firm, and the legal system. It is a busy time, often accompanied by long hours. However, it is critical that during the first few years all new associates integrate these simple habits into their daily routines to help recognize and minimize potential professionalism risks.

Become Familiar with the Ethical Rules New associates are aware of the rules of professionalism from law school and the professionalism exam. However, few of them reference or use those rules in their daily practice. This often is because they believe that the partners for whom they work are the ones tasked with that responsibility or that the rules are merely something to reference when a problem arises.

However, the best way to prevent a professionalism problem is to be familiar with the applicable ethical rules and consult them regularly. Thus, it is important for junior associates to stay abreast of developments in ethics and professional responsibility. It also is important that they recognize when a professionalism issue is before them, such that they should research the applicable rules and controlling law.

For example, in a matter involving an ethical screen, the partner or senior attorney on the matter may presume that the new associate knows how and is effectuating the screen properly. A new associate who is unfamiliar with the applicable restrictions and requirements will not be able to do so, exposing the firm to risk. But a new associate who is current on the issue, or at least knows that she should look into it, can help the partner make sure best practices are being employed. 

Be Wary of Social Media
Most attorneys have both a personal and a professional social media presence. New associates are no exception. However, those associates may not be aware of the risks that come with this presence.

There are three major risks for attorneys who post too much about their cases or about pressing legal matters on social media. The first is confidentiality. Attorneys are bound to protect the confidentiality of information relating to their clients and representations. This is a duty that survives the term of the representation and the attorney-client relationship. Thus, new associates should be wary about posting anything that could inadvertently reveal confidential information. This includes mentioning a client’s name, geo-tagging the location of a client, and generally commenting on a representation. 

A second risk is inadvertently creating an attorney-client relationship. If a friend complains on Facebook about his landlord, and an attorney responds with advice, an attorney-client relationship could be formed. If the friend follows the advice and is disadvantaged, there is a risk that a grievance or a complaint against the attorney could result. Also, other third parties could read that same advice—not intended for their use—and rely on it to their detriment. The issue is not always whether the attorney has committed malpractice, but whether the attorney will be forced to engage in defending a bar complaint or other action.

Third, social media poses a risk to new associates’ reputations and other professional obligations. A junior attorney posting about his dislike of doctors could be a vulnerability to his client in a medical malpractice defense. Or a junior attorney may find his team is not hired for a pitch to a car manufacturer after the potential client discovers that the junior attorney has posted critically about auto industry bailouts. In addition, an attorney could harm his own reputation through purely social posts that present an unprofessional image or convey questionable judgment. Further, all of these actions may violate the associate’s employer’s social media policy.

For these reasons, it is important that new associates recognize that what they post on social media, even when “off the clock,” can have serious repercussions. However, these repercussions are preventable. Accordingly, all new associates should take a close look at their social media presence and their employer’s social media policy, making changes to their social media behavior as warranted, and continuing to monitor what others post about them.

Actively Maintain the Matter File

New associates often are given the administrative task of “maintaining the file.” However, they rarely are given thorough instructions on the best way to do so. Typically, the pleadings and correspondence files are self-explanatory. But what else should new associates make sure is filed away during a representation?

The answer comes by imagining an unpleasant scenario: an unhappy client. If a client comes back with questions, or worse yet a claim, regarding how and why certain things happened in the representation, the file is the attorney’s best tool. It should contain information regarding how certain decisions were made and how they were explained to the client. This includes research, memos, and attorney notes. It also should include any issues that the firm consulted the client about and any topic on which the client expressed a preference or directed a specific action. At the same time, if the client raises questions about the attorney’s or the firm’s work, internal firm correspondence regarding those issues should not be included in the client file, but rather in a separately maintained law firm file, to preserve the firm’s attorney-client privilege in the information.

A properly maintained file will serve to refresh an attorney’s recollection about what happened during the representation and to document and support the details of the representation. It also will allow the team to quickly find information during a representation without having to recreate the wheel or spend hours tracking down a document. This is true for both paper and electronic files. Getting on top of file management from the start of a representation will save new associates time and stress, and it will enable them to better focus on the tasks at hand.

Keep the Team Organized
Many law firms staff a matter with attorneys of various levels of seniority. This inevitably means that the more administrative tasks often fall to the newest associate. While less glamorous than attending a big client meeting or arguing a motion, these tasks often are the most critical, and if overlooked, can lead to serious consequences. 

New associates should take the lead in ensuring that their matters do not go into default. This means identifying and calendaring all deadlines and important events for the entire team. It also means reviewing the applicable rules and making sure the entire team knows how they affect the representation. In addition, it means staying on top of outstanding tasks—making sure a letter or pleading is being reviewed on time by the partner, ensuring that client follow-up is performed, and checking in on dormant cases to make sure there are no new developments. 

Doing these things can greatly reduce the risk of a missed deadline or an unhappy client. And they show that the new associate is taking an interest in, and is capable of handling, basic case management.

Building Your Skills
As associates become more experienced, more is expected of them. Partners no longer simply expect the associates to perform discrete research tasks. Instead they may expect them to become fully engaged in the matter. This includes taking a bigger role in managing a case and guiding it to completion. This is true regardless of the practice area.

With this increased role comes increased responsibility for any risks and mistakes associated with that case. These risks can take several forms—overlooking a key legal issue, running afoul of professionalism issues, managing ever-changing deadlines, and dealing with difficult opposing counsel are just a few. Below are several key steps advancing associates can take to prepare themselves for new responsibilities and to help ensure the matters to which they are assigned move forward smoothly.

Draft and Manage a Matter Strategy Plan
When an associate is assigned to a new matter, the associate has two immediate tasks. First, the associate must get up to speed on the matter. This involves learning the facts, finding out what the client expects during the representation, and identifying the key issues. Ideally, the associate would be present at the initial client meeting. Practically, this often is not the case, and it is not until after this initial meeting that the partner can determine the matter’s staffing needs.

Second, once the associate has a grasp on the known facts and issues associated with the representation, the associate should draft a matter strategy plan. The plan should lay out several key areas of information: a factual overview, the legal issues, the goals of the representation, strategy for achieving those goals, and a timeline of pending deadlines and events. In addition, it should set forth a draft budget that includes the amount of time each category of work is expected to take. 

This matter strategy plan serves multiple purposes. It helps the associate get organized and figure out what additional information is needed, the scope of the matter, initial deadlines, and the amount of time the matter likely will require. In addition, it opens up the lines of communication between the managing partner and the associate regarding the direction of the case and what is expected of the associate. Drafting and reviewing the plan also helps train the associate for managing cases as she advances in her career. Perhaps most importantly, from a risk management perspective, once the plan is approved, the associate can use the plan to ensure that all important dates and deadlines are on the calendars of those assigned to the matter, including the partners, associates, paralegals, and support staff.

This matter strategy plan should be a living document that is revised as the representation moves forward. How often the plan is revised depends on the type and scope of representation. At a minimum, it should be reviewed every quarter. Even if there are no changes, it is a good exercise to make sure the associate is aware of pending work and deadlines and to make sure the matter remains on course. In addition, it serves as a reminder for the associate to touch base with the lead partner to let her know the case is either on track or needs attention and to ask whether there are any recent developments that need to be addressed.

Know What to Do If a Mistake Is Discovered
Because newer associates spend the most “hands on” time with a case, they may be the ones in the best position to discover a mistake. That mistake can range from a missed deadline to an overlooked legal issue. While every effort should be made to ensure that such mistakes are avoided, the reality is that they do happen. How they are handled once discovered is critical and often starts with the associate.

If the problem is discovered during a conversation with the client, provide the client with the basic facts, but do not make excuses, assign blame to others, admit wrongdoing, or take responsibility for the mistake or error. Doing so may void coverage under the applicable professional liability insurance because most policies include what is known as a “no admissions clause.” 

Immediately upon identifying the mistake or error, inform the lead partner. If that partner is not available and will not be available within the next 24 hours, the associate should seek out the person the firm or practice has designated as either full or part-time in-house counsel. While this designation may not be as well-known, it can be easily determined by asking the office manager or another partner. 

It is important that the associate not divulge key facts about the issue while determining who serves as firm counsel, because doing so may waive important privileges in future litigation regarding the mistake. By reserving the discussion regarding the mistake to in-house counsel, attorney-client privilege remains intact and will protect the firm should litigation arise between the firm and the client.

Seek Out Opportunities to Learn
Newer associates are busy and have little control over their schedules. The good news is that even a couple of years into practicing law, associates often gain more control over their schedules. It is critical to take advantage of this change and use the increased flexibility to seek out opportunities to learn how to manage a case. 

One key area to seek out this training is preparing and addressing witnesses and discovery disputes. There are two ways to build up knowledge and experience before being asked to manage these kinds of issues alone: attend seminars on these topics and shadow senior associates or partners. 

Doing so will prepare associates for the myriad of challenges that can arise during a matter: discovery disputes, objections to questions during depositions, preparing witnesses for questioning, and protecting communications with witnesses, especially experts and consultants, are just a few. Often when these types of issues arise, there is little time to react. Being prepared is the best way to avoid a mistake that may negatively impact the representation.

Conclusion
Following these fundamental tips will help prepare a new associate to make the transition to more senior associate status, while helping the associate identify and avoid professional risks on a day-to-day basis. These tips also will help prepare newer associates for challenges they will face as they take on more responsibilities, and will help keep the lines of communication open with the partners for whom they work. As a result, both the associates and the firms for which they work will face lower risks of ethical violations and legal malpractice claims.

Keywords: risk management, legal malpractice, young lawyers, new associates, ethics, professional responsibility, social media, case management, case plans


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