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Legal Malpractice Avoidance Checklist
The following checklists summarize some practical suggestions to lawyers
on how to conduct their practice so as to avoid claims against them for legal malpractice.

  1. Proper Calendaring
  2. Non-Engagement And Disengagement
  3. Avoid Suing Clients For Fees
  4. Inadequate Knowledge Of Law Or Facts
  5. A Good Client Relationship Is Imperative
  6. Personal Involvement With Clients
  7. Conflicts Of Interest
  8. Malicious Prosecution
  9. Financial Matters
  10. Documentation Or Leaving A Paper Trail
  11. Rejecting Certain Clients And Cases
  12. What To Do Upon Receipt Of A Malpractice Claim
  13. Client Consultation
  14. Malpractice Avoidance Technique
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Legal Malpractice Avoidance Checklist

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Failure to properly calendar matters is the leading cause of legal malpractice throughout the United States. Liability is usually clear and the extent of damages is the major remaining issue. There is little excuse for this type of malpractice so heed the following suggestions.

  • Calendar every case, not just those in litigation.
  • Make or obtain a list of all critical litigation dates in your jurisdiction and dual calendar them together with adequate lead times.
  • Have at least a dual caldendaring system with your secretary, keeping a matched calendar.
  • Provide all due dates and adequate lead times.
  • Conduct a personal, monthly hands on review of all cases in your charge to be sure each one is up to date.

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Non-engagement is refusing to accept a case in the first instance, and disengagement is removing yourself from the case after having once accepted it. Horrendous claims have arisen because attorneys did not properly exit from a case. In rejecting a case or withdrawing, consider each of the following points.

  • The attorney's withdrawal should be confirmed by a certified letter to the client return receipt requested.
  • The letter should state, in no uncertain terms, that the law firm is not taking or going to continue representing the client in that case.
  • The client should be advised that there are critical time limits that must be adhered to in order to keep a claim viable.
  • The client should be advised to seek other legal counsel as soon as possible to pursue his rights.
  • Avoid stating the exact legal reason for rejection of the case.
  • Avoid stating why, in your opinion, the case lacks merit.
  • Avoid stating why, in your opinion, certain defendants are not liable.
  • If you have become attorney of record in the case, then a substitution of attorneys must be obtained by client consent or a court order obtained releasing you from the case.

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Experience has shown that a great many legal malpractice cross-complaints are filed in response to the attorney's suit for unpaid fees. Often, the fees were not properly established, billed or collected prior to the litigation. Heed the following warnings.

  • As a general rule, avoid suing clients for fees.
  • The preventive fee arrangement: By carefully handling your fees from the outset of a new case, the need to sue a client can often be avoided.
  • Enter into a written fee agreement early in the course of representation.
  • In the fee arrangement, clearly spell out the method of billing and the scope of engagement.
  • Use itemized billings so that the client can tell what is being done one his behalf.
  • Bill periodically, preferably monthly.
  • Keep an accurate time log reflecting daily efforts spent on behalf of the client.
  • Do not attempt to change your method of compensation in the middle of the case.
  • If you are determined to sue a client for fees, first consider:

Is a substantial amount of money involved insofar as your law firm is concerned?

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Attorneys who take on a new matter in which they lack experience are generally held to the standard of care practices by those attorneys who practice in that area of law as one of their specialties. With that in mind, attorneys should move into new areas of legal practice with caution.

  • Refer to or associate with an expert if you lack the necessary expertise.
  • Attend continuing education law courses in your fields of practice.
  • Keep current with the changes in the law.
  • Make a thorough independent investigation of the facts, do not rely solely upon the client's version.
  • Conduct reasonable research on all of the pertinent issues.

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Every attorney will make mistakes, but not all will be sued. Often, the difference has to do with the strength of the attorney-client relationship. Experience has shown that the checklist items set forth below are important considerations in establishing the appropriate attorney-client relationship.

  • Understand and mutually define your client's objectives.
  • Develop a case plan or transaction plan with each client. Give client a copy.
  • Review and make sure the client understands the risks in any procedure or action you recommend. Suggest commercially acceptable solutions.
  • Have each client sign a representative agreement and make sure the client understands the fee arrangement and the agreement. Advise that you will bill periodically, preferably monthly.
  • Define the client's responsibilities and encourage realistic expectations in the client. Show an interest in the client as a person.
  • Define the lawyer's responsibilities.
  • Be on time for appointments, if it is in your office, greet the client in the reception area and make sure the client feels at ease and comfortable.
  • Return all phone calls promptly.
  • Avoid taking telephone calls during office conferences with the client.
  • Copy your client with your work product.
  • Keep all promises.

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When something goes wrong with a business investment in which the attorney is a partner with the client, very often the attorney is brought into the litigation on a malpractice cause of action. In many cases, such participation by an attorney may not be covered by a malpractice policy.

Sexual involvement, either actual or implied, during representation aggravates any type of malpractice case.

  • Do not encourage clients to invest in projects.
  • Do not accept stock in lieu of fees.
  • Do not personally guarantee a client's obligations or have the client personally guarantee yours.
  • Avoid advancing costs where possible.
  • Avoid dating or having an intimate relationship with a client during the course of your representation.

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Many problems arise out of the discovery of a conflict of interest after a case has been commenced. One of the hazards of continuing the representation is that the attorney may have to return all fees received and incur responsibility for client's other damages.

  • Establish a "fail safe" conflict system within the office.
  • Avoid suing prior clients even when allowed under the rules.
  • Take only one side in a dispute.
  • Receive your compensation in a transaction from only one side.
  • Avoid being both a director and an attorney for a business entity.
  • Where allowed, consider written waiver of conflict by the parties affected.
  • Do not represent buyer and seller, landlord and tenant or trustor and beneficiary at the same time.
  • Set forth who you represent in any document that you draft and, where appropriate, indicate that the other party has been advised to seek independent counsel.
  • Do not act as an escrow agent in connection with the sale of real estate or a business.
  • Do no accept employment from more than one client seeking to sue and collect from a single source without a specific written agreement from all plaintiffs as to how the proceeds are to be divided.

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Malicious prosecution is not malpractice per se because it involves an intentional tort brought by a third party, not by the client. At the same time, being sued for malicious prosecution has the same emotional and financial impact on the attorney as a pure legal malpractice claim. Consider the practical suggestions set forth below to avoid finding yourself becoming a defendant in such a case.

  • Do not name parties as defendants without reasonable research and investigation.
  • Reject grudge lawsuits.
  • Avoid, where possible, suing other attorneys.

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Many large claims are appearing because attorneys are not watching out for the financial protections of their clients.

  • Recommend adequate security where appropriate.
  • Properly perfect any security document given to your client.
  • Provide protection of cash payments through an escrow account where appropriate.
  • If your client is sued in a liability case, make sure that all of the client's insurance policies are considered in providing defense and/or indemnity protection.

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Lack of documentation may give rise to a claim that would otherwise never exist. Often, after things go bad the client will remember advice given (or not given) in a completely different way than will the attorney.

  • All important advice to the client should be confirmed in writing.
  • It is critical to write to the client when the client is proceeding contrary to the lawyer's advice.
  • Matters of less importance may be covered by memorandum to the file.
  • It is important to document all settlements offered and rejected and to have them signed by the client.

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As attorneys gain experience, they learn that certain clients and certain cases are better off rejected at the outset. Some red flag warnings follow:

  • Beware of the client who is changing attorneys.
  • Look out for the case that has already been rejected by one or more other firms.
  • Avoid the case that has an element of unavoidable urgency.
  • Beware of the client who has already contacted multiple government representatives to plead his case.
  • Beware of the client who wants to proceed with his case because of principle and regardless of cost.
  • Beware of a client who has done considerable legal research in propria personal on his case.
  • Beware of the client who is obviously recognizable as being impaired by chemical substances, alcohol, drugs, etc.
  • If your first impression of the client or his course of action is unfavorable, think twice before accepting his case.
  • If you and your client cannot easily agree on fee and retainer, you may be dealing with a difficult client.

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Attorneys, upon receiving a malpractice claim or the suggestion of a claim from a client, sometimes fail to report the incident immediately in hopes of rectifying the situation on their own without upsetting their partners.

  • If an actual claim (suit), report the claim as soon as possible in accordance with the provisions of your policy.
  • If an incident occurs and you feel that it could eventually result in a claim, discuss the situation with a partner in the firm and report it to the carrier under the "Discovery" clause of your policy.
  • Discuss the alleged claim or incident with an experienced attorney that you respect.
  • Explore, with your carrier, whether or not the alleged mistake can be corrected by any means.
  • If it is a relatively small claim, try and have it settled quickly, withing the amount of your deductible.
  • Try and resolve the claim by settlement rather than by trial.
  • Do not represent yourself.
  • If the case proceeds to litigation, try every method of winning the case, jury trial being the last resort.
  • Consider, if the possibility exists, having the case litigated in a county other than your own to avoid unnecessary publicity.
  • Be completely hones and cooperative with your defense counsel.

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Failure to obtain client consent endangers the harmonious client attorney relationship. If the client becomes angry with the attorney, or feels that the attorney is proceeding without his consultation, that client is more likely to become dissatisfied and consider suing if he/she does not obtain the case result he/she desires. Do not proceed in a vital area of a case or matter, including the following, without your client's express permission.

  • Extending to the other side additional time in which to respond to a pleading.
  • Stipulating to a given item of testimony or evidence.
  • Settling a case.
  • Suggesting a settlement figure to the other side.
  • Rejecting a settlement offer.
  • Agreeing to a continuance.
  • Concluding your client's testimony in a litigation matter without checking with the client to see if he has additional testimony to impart.

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In addition to the foregoing, there are some practical suggestions that do not fit into any of the preceding categories, but are nevertheless extremely important.

  • In drafting legal documents, us a comprehensive up-to-date checklist as a guideline to your own document whenever possible.
  • Do not accept cases for which you do not have either adequate time or capital to take the case to its completion.
  • Screen out cases with poor liability early because those tend to be the cases where a statute of limitations is missed.
  • If you are a new attorney, arrange to have access to a "mentor" attorney with whom you can talk over new legal and practical case control problems.
  • If you are not practicing in partnership for, make your independent status form, make your independent status clear to your clients, and makes sure that your associates do so as well to avoid liability on the theory of a "defacto partnership".
  • If you suspect that you or a legal associate has a drinking or a drug problem, get professional help at once.
  • Any error that you wish to argue on appeal must be properly presented and preserved in the record of the trial court proceedings.
  • Reinforce the elements of your firm's client service strategy at an annual retreat with everyone in the firm.
  • Reward employees for being client advocates.

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CAUTION: The information contained on this page is intended solely as general loss prevention advice and not as legal advice for dealing with any specific legal problem.

Copyright © 1997-2005 Internet Legal Education and Development, Inc. All rights reserved. No part of this publication may be reproduced in any form or by any means without prior written permission from the publisher. Enrollment and participation is an acknowledgement and understanding that any and all program materials and concepts are proprietary to Internet Legal Education and Development, Inc. and all rights are reserved. These materials may not be reproduced or distributed other than for the educational use by the enrollee without the prior written permission of the publisher and Internet Legal Education and Development, Inc.