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How to Avoid a Malpractice Claim
In most areas of law practice, problems with lawyer-client communications are the number one cause of malpractice claims, followed closely by basic deadline and time management issues. From a claims prevention point of view, you get more for your risk management efforts by focusing on improving client communications and getting things done on time. With this in mind, here are my top tips for avoiding a malpractice claim.
1. Get it in writing. At the start of every client engagement, write a retainer letter that documents the terms of the engagement, clearly identifying who the client is and what you have been retained to do.
2. Get the money up front. 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 remind you when the amount in trust is getting low). Stop working if the client fails to replenish the retainer — it’s a good sign that you will have trouble with collections down the line.
3. Manage client expectations. Not just at the start, but throughout the matter, clearly and accurately communicate to your clients the available courses of action and possible outcomes, all the implications of any decisions, how long things will take and the fees and disbursements they will need to cover.
4. Document, document, document. It’s not practical to document everything on every matter, but document as much as you can in some contemporaneous manner. Letters are fine, but emails, detailed time entries and marginal 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. Memorialized communications help confirm what was said or done for the client should you need to look back to explain why or what work was done, to justify an account, or to defend on a malpractice claim.
5. Meet or beat deadlines. Set realistic deadlines for completing tasks and delivering things to clients. Under-promising and over-delivering makes clients very happy. Don’t leave things to the last minute — inevitably some unexpected event will prevent you from delivering what you promised. Giving yourself an extra day or two by setting your deadline before the real deadline can be a lifesaver.
6. Don’t annoy clients. The same things that annoy you annoy your clients: failing to return calls or emails, long periods of inactivity, and surprising a client with bad news or a large invoice.
7. Ask how you’re doing. Ask clients for feedback as the matter progresses, at milestones or when interim accounts are rendered, as well as when you close the file. Talk to major clients at least once a year, and do this off the clock!
8. Send interim and final reporting letters. Confirm in writing what work was done, and the successes obtained for the client. For example: Retainer terminated, future steps and so on.
9. Don’t sue for fees. This almost guarantees a counterclaim for negligence.
10. Listen to your gut. If you are unsure or hesitant about handling the matter for any reason (unfamiliar with the area of law, a potential conflict exists, matter for a relative or friend, demanding or difficult client, lawyer on other side is a jerk), get appropriate help or refer it to another lawyer.
If you do these things, it will help ensure that you have happy clients and avoid malpractice claims — remember, happy clients don’t tend to sue their lawyers!
Dan Pinnington is Vice President, Claims Prevention & Stakeholder Relations at the Lawyers’ Professional Indemnity Company (LAWPRO), where he helps lawyers avoid malpractice claims. He is a Fellow of the College of Law Practice Management and a prolific writer, speaker and blogger on risk management, legal technology and law practice management issues. Follow him on Twitter @DanPinnington.
This was originally published by Attorney at Work on June 20, 2011.