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Limiting Attorney Malpractice Claims

For the past few weeks, the “Malpractice Monday” series has discussed the basic elements of attorney competence. Attorneys who fail to meet these standards, as well as other legal and ethical duties, may be held responsible for malpractice.

The law holds an attorney liable for malpractice when negligent conduct of the client’s case or issue causes the client to suffer damages (either monetary or non-monetary). Since malpractice is a form of negligence, all of the negligence elements (breach of a legally recognized duty, causation, and damages) must be present in order for liability to occur.

Attorneys can reduce the risk of malpractice claims by handling clients and practice issues responsibly, documenting their actions with care, and taking other steps to ensure a properly-functioning practice. 

14C16 Communication

Here are a few specific ways attorneys can work to reduce the potential for malpractice:

 1. Establish (and follow) standard office management procedures. Procedures should include, at a minimum, standard practices for client selection, case management, billing, conflict checking and scheduling.

2. Supervise subordinate attorneys and office staff. The attorney is responsible for staff and subordinates working on a client’s case or issue. Careful office management is important.

3. Select clients carefully. An attorney should represent only clients whose matters or issues the lawyer can handle competently. In addition, attorneys should obtain valid contact information, and represent only clients who share all relevant information and respond promptly and thoroughly to attorney communications.

4. Use Properly-Drafted Retainer (Engagement) Agreements. A properly-drafted retainer agreement establishes not only the terms of the attorney-client relationship but also provides the client with a written statement of what duties the attorney will — and will not — perform.

5. Address Client Issues and Questions Promptly. Responding to clients’ concerns, and maintaining regular client communications helps prevent misunderstandings and manage client expectations. Prompt responses to client calls and email also keeps the attorney informed of developments in the client’s case, which in turn assists with responsible representation.

6. Document Client Files Throughly and Regularly. Organized, updated files help prevent mistakes and facilitate responsible client and case management practices.

7. Send Regular Billings. Establishing a regular billing and payment cycle not only helps manage the client’s expectations and understanding of the case, but also puts the attorney on notice of non-paying clients before a litigation matter gets close to trial, when attorney withdrawal for client nonpayment becomes more difficult.

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8. Pay Attention to Schedule and Master Calendar Management. Procrastination, and poor scheduling, can lead to problems. Allocate sufficient time to schedule reviews and managing the master calendar to ensure that all client matters, attorney hours, and staff activities are properly scheduled and accounted for.

Solid practice management techniques can help prevent mistakes, facilitate positive client experiences, and help attorneys build a strong and competent practice.


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