Even the best attorneys make mistakes. As an attorney that handles legal malpractice cases, I can tell you that the good news is that most mistakes do not rise to the level of legal malpractice. So, where do attorneys get themselves into trouble? Below I discuss seven common malpractice traps that I see in my practice. This is not a formal study or survey. But, if you keep aware of these common traps, you can hopefully steer clear of a legal malpractice claim.
- Dabbling: Malpractice cases often arise when an attorney ventures outside his or her area of expertise. If you are not a tax attorney, it is very risky to give tax advice. If you are not an expert on wage-and-hour law, you may easily give your clients bad advice that gets them sued. When presented with a matter that is outside your area of expertise, consider referring to experts in that area. Or, at the very least, seek the help of a practitioner experienced in that area.
- E-Discovery: As cases become more complex, it is essential that attorneys educate themselves on e-discovery procedures and requirements. It is not enough to simply hire an e-discovery expert or rely on a paralegal. Attorneys need to competently advise their clients regarding the preservation of electronically stored information. E-discovery errors can have drastic consequences and could lead to a malpractice suit.
- Associates and Staff: Supervising attorneys must supervise. “My secretary calendared the wrong date” or “the associate blew a deadline” are not viable defenses to a malpractice lawsuit. While attorneys should defer as much work as appropriate to associates and staff with lower billing rates, supervising attorneys must do more than take the client to lunch. At the end of the day, the supervising attorney is responsible for the management of the entire case.
- Insurance Coverage: Attorneys have a duty to advise their clients on potential insurance coverage. Yet, many attorneys never ask to see their client’s insurance policies or conduct a coverage analysis. Many attorneys ignore coverage issues, knowing that if the carrier accepts the duty to defend, the carrier will retain its own panel counsel to defend the client. But, if the client shells out substantial sums in defense costs, settlements, or to pay a judgment that should have been covered by insurance, the attorney may find himself or herself on the wrong end of a legal malpractice lawsuit.
- Overconfidence: Trial lawyers are, by nature, very confident (or at least very good at acting confident). But, overconfidence can get you in trouble. Attorneys that are overly confident on their knowledge of the law may neglect to do adequate research. Attorneys that are overly confident in their trial skills may advise their client to reject a reasonable settlement offer, believing they will get a greater result at trial. While confidence is a necessity for lawyers, when advising clients, a little humility may help as well.
- Poor Communication: This is the biggest complaint I hear from disgruntled clients considering a legal malpractice action. Clear and frequent communication by the attorney is critical. Regular client updates should not be passed down to staff or junior associates. Likewise, while it is no fun to give bad news, that is part of the job. It is important that attorneys communicate the good and bad to the clients, so the client can maintain reasonable expectations as to what the litigation may accomplish.
- Covering Up Mistakes: As noted in the opening sentence, all attorneys make mistakes. The law does not expect attorneys to be perfect, and for the most part, neither do clients. But, when a mistake happens, it is essential the attorney come clean as soon as possible. Burying your head in the sand is never a good strategy. Identifying problems early gives you the best chance to fix the problem before it injures the client. Additionally, disclosing mistakes to the client eliminates the inevitable surprise and anger the client will feel when an undisclosed problem comes to light (and it will).
While legal malpractice cases can arise in almost any circumstance, being aware of these seven malpractice traps can not only help you avoid liability but also help you better serve your clients.