In most areas of law practice, lawyer/client communication problems are the number one cause of claims, followed closely by deadline and time management issues. Together they typically account for more than half the malpractice claims LAWPRO sees. Failures to know or apply substantive law typically account for about 10% of claims. See The Biggest Claims Risks article for more detail about the most common malpractice errors.
So, while knowing substantive law is important, from a claims prevention point of view you get more for your risk management efforts by focusing on improving client communications and focusing on getting things done on time. With this in mind, here are my top tips for avoiding a malpractice claim:
- Start out on the right foot with a written retainer: The retainer letter or agreement is your terms of engagement. It should clearly identify who the client is and what you are retained to do.
- Get the money up front: At the time you are retained, get a retainer that is sufficient to cover all initial work that needs to be done on the matter. Replenish retainer funds before they are exhausted (set up your accounting system to monitor and remind you when the amount in trust is getting low). Stop working on the file if the retainer is not replenished – working on credit greatly increases the likelihood you will not get paid for your work. Of course, you can and should do pro bono work, but only when you choose to do it.
- Control client expectations at all times: Clearly and accurately communicate to your clients the available courses of action and possible outcomes; all the implications of any decisions; how long thingswill take; and the expected fees and disbursements.
- Document everything (almost): It is just not practical to document everything on everymatter, but you should document asmuch as you can in some contemporaneousmanner. Letters are fine, but e-mails, detailed time entries, andmarginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes, and major client instructions or decisions. Documenting things is especially important when you are dealing with difficult or emotional clients.Memorialized communications help confirm what was said or done for the client in the event you ever need or want to look back to explain why or what work was done, to justify an account, or to defend yourself on a malpractice claim.
- Meet or beat deadlines: Set realistic deadlines when it comes to completing tasks and/or delivering things to clients. Underpromising and over-delivering (i.e. earlier than promised) on work for clients will make them very happy. Don’t leave things to the very last minute as unexpected events beyond your control (blackouts, snowstorms, taxi got lost on way to file documents) will prevent things from happening as required. Giving yourself an extra day or two by setting your deadline before the real deadline can be a lifesaver.
- Don’t do any of the things that most annoy clients: These are all the things that would equally annoy you. They include not returning calls or e-mails, long periods of inactivity, surprising a client with bad news or a large account.
- Don’t handle a matter with which you are uncomfortable: If you are unsure or hesitant about handling thematter for any reason (e.g. unfamiliar with the area of law, a potential conflict exists, matter for a relative or friend, demanding or difficult client), get appropriate help or refer it to another lawyer.
- Don’t wait until after the file is closed to ask how you did: Ask clients for feedback as thematter progresses, atmilestones or when interim accounts are rendered. Talk to major clients at least once a year, and do this off the clock!
- What goes around comes around: Your reputationwill precede you. Be civil all of the time, to your client, the counsel and client on the other side, judges and court staff.
- Send interim and final reporting letters: They should confirm what work was done, and the successes obtained for the client. For example: For example: Retainer terminated, futures steps, and so on.
- Don’t sue for fees: This almost guarantees a counter-claim alleging negligence.
- Document everything (almost): Read #4 again – it is the best way to avoid a claim.
Doing all these things will help you avoid the most common malpractice errors and ensure you have happy clients. And remember, happy clients don’t tend to sue their lawyers.