Any legal professional that has been in the industry long enough can attest to the fact that malpractice suits can (and will) happen to the best of lawyers, and often for reasons far more benign than one would think. Minor mistakes, missed deadlines, poor communication, and failing to properly screen a new client can all lead to malpractice suits that could cost a practice thousands of dollars in both fines and lost business.
Instead of wasting valuable assets, lawyers should follow these 10 ways to avoid malpractice for their law firms.
- Do extensive research on malpractice suits
- Screen all potential clients
- Avoid missing deadlines
- Prioritize documentation
- Take mental health into account
- Detour conflicts of interests
- Set boundaries with the attorney-client relationship
- Create solid billing practices
- Malpractice suits can happen to anyone
1. Do extensive research on malpractice
According to the ABA, 46% of malpractice claims are due to substantive errors such as failing to apply the law correctly, not knowing when a deadline was, and failing to investigate thoroughly during discovery.
The best way to avoid succumbing to this type of malpractice is to do extensive research and to make sure that one knows the law inside and out. Lawyers should constantly be learning and digging deeper into the law to make sure they’re up to date on changes and avoid misapplication of it. These common errors can typically be avoided by ensuring all research and work performed by the staff is done methodically and according to the law.
2. Screen all potential clients before agreeing to represent them
Many lawyers can recall a time that they ignored a red flag when meeting with a potential client and later regretted ignoring it. Oftentimes, those red flags were foreshadowing the difficulties a problem client would cause. Instead of having such clients come back to haunt the firm with a malpractice suit, lawyers should formulate a plan and screening process that all staff will follow before accepting new clients.
3. Over-communicate and follow through at all times with clients
Another common, and easily avoidable reason that lawyers are sued for malpractice is client disagreements. Nearly every malpractice suit originates with a client who is not pleased with the work performed by their lawyer. One of the best ways to avoid being sued for malpractice is to make sure they’re satisfied with their representation and communication.
This tip begins with being a good listener with clients. Take notes on their expectations and goals and clearly identify if they can reasonably be achieved. Once the client relationship is established and initial expectations are set, lawyers should maintain consistent communication with the client and return all calls and correspondence as quickly as possible.
Above all, when dealing with clients, lawyers should remain professional and maintain confidentiality at all times to ensure satisfaction and prevent any conflict that could lead to a malpractice filing against the firm.
4. Avoid missing deadlines by creating systems
A leading cause of malpractice suits is missed deadlines. This may be due to data entry errors, forgetting to put deadlines on a calendar, or procrastination. A simple fix to avoid missing events, like court appearances or client meetings, is by adopting an automated calendaring system. Legal practice management software, like PracticePanther, takes the guesswork out of keeping up with a lawyer’s busy schedule and allows them to keep track of their day in the office or on the go.
The ability to set reminders, notifications and track task progress is crucial to calendars used in law firms and will help lawyers avoid malpractice suits. While they require up-front dedication to get rolling, they’re worth the effort, easy to maintain, and will save your firm time and money in the long run.
5. Document work and properly manage files
Poorly managed files and a failure to properly document work can also lead to a malpractice claim. Law firms have historically relied on a paper filing system which poses several efficiencies and even malpractice concerns. Lost or misplaced paper documents are a recipe for a malpractice claim waiting. Luckily, advancements in legal technology allow firms to create a digital filing system to securely store and access their documents. Messages, emails, and any other correspondence are easily accessible to the entire firm and leave a reliable paper trail along the way. Becoming a paperless law firm not only saves you from a malpractice suit but saves time and can even decrease your environmental footprint.
6. Be mindful of mental health and its impact on the firm
Lawyers and their staff are notorious for working long hours fueled by an abundance of caffeine. Instead of ignoring the red flags of exhaustion, addiction, and poor mental health, firms should actively be addressing them and making sure that lawyers are getting adequate rest and help.
Mental health has taken the back seat in many industries for most of history but the recent push for awareness and support has made it easier than ever for individuals to get the help that they need especially when a safe environment is created at work.
7. Avoid conflicts of interest
Malpractice suits often come about as a result of conflicts of interest. These conflicts may be due to personal relationships, common business or social ties, or a failure to properly state one’s representation. While conflicts can arise without malice, they often lead to costly suits so it’s important to avoid even the appearance of them.
8. Don’t get overly involved with clients
Closely related to the previous tip but pertaining more to business dealings. This inappropriate involvement can include serving on a client’s business committee, investing in their start-up, or taking stock options for payment of services. These scenarios are very easy for lawyers to fall into because they’re seemingly harmless at face value. However, these acts can give the appearance of a conflict and may weaken the firm’s defense if they’re ever involved in a malpractice suit.
9. Be strict and consistent with billing
Malpractice suits are often triggered by a final bill for clients unable to pay their legal fees. While this is nearly unavoidable, lawyers can minimize the threat by clearly defining billing procedures and sticking to the schedule of fees as communicated to the client. If an account is past due, take action immediately and review account balances monthly. This process can be seamless by streamlining your billing process with the use of client portals, online payments, and e-billing.
10. Understand that malpractice suits can happen to any lawyer
The final tip is to fully understand that malpractice suits can (and likely will) happen in every lawyer’s career. Instead of denying this probability, do what is possible to be prepared for them and follow these tips to prevent the top causes for malpractice lawsuits.