Part Two: Steps to Avoid Malpractice Claims for Plaintiffs’ Lawyers
Legal MalpracticeThis Article is our follow-up to our Part I on Steps to Avoid Malpractice Claims for Plaintiffs’ Lawyers. In this Article, we expand on some of the most common ways that plaintiffs’ attorneys may find themselves defending a malpractice claim, and provide some suggestions on how to avoid them entirely.
1. PROPERLY IDENTIFY THE DEFENDANTS TO THE SUIT
A common source of malpractice claims is filing a suit against the wrong party, which can be avoided through a thorough investigation of the facts of the case. Attorneys can find themselves in hot water when they rely on information provided by their clients and fail to investigate further.
Recommendations:
- Complete a thorough investigation to properly identify the persons responsible for your clients’ injuries. More on completing thorough investigations is discussed below.
- Do not rely solely upon the information provided by your client as it is insufficient to shield you from a malpractice claim.
2. COMPLETE A THOROUGH INVESTIGATION OF YOUR CLIENT’S CLAIM
Inadequate investigation or discovery of facts is a substantive (and quite common) error, as well as the failure to adequately research and understand the procedural rules that apply.
Recommendations:
- Complete adequate and thorough legal research and due diligence.
- Conduct competent research to make an informed decision.
- Fully investigate or evaluate the sufficiency of the claims or defenses available.
- Stay current in the areas of law in which you practice.
3. RETAIN EXPERT TESTIMONY IN A TIMELY MANNER
Failure to hire an expert or the proper type of expert—whether arising from procrastination, unfamiliarity with subject matter, lack of understanding about legal procedure or simply inexperience—is yet another source of malpractice claims.
Make no mistake–failure to retain an expert witness within the deadlines set by the court may doom the plaintiff’s case. A judge may grant the defendants motion to dismiss if she finds that the plaintiff could not win unless he had a properly qualified expert witness to give testimony on his behalf.
Another problem can arise when the lawyer retains the wrong expert, particularly when the expert testifies about an issue outside the realm of his expertise. This could arise where a psychiatrist is the subject of the suit, but the lawyer has retained a family therapist or social worker.
Recommendations:
- Do not procrastinate in the proper investigation of the case.
- Understand the technical subject matter and proper legal procedure, ensuring that you have retained the proper type of expert witness and done so within the deadlines set by the court.
4. DO NOT OVERLOOK HOSPITAL LIENS
When a lien has been imposed by an insurance company, medical service or provider, the attorney is required to pay the lienholder the amount due from money received in any judgment or settlement. If the plaintiff’s attorney overlooks the lien, she may be personally obligated to satisfy it.
Recommendations:
- Again, first and foremost–do your due diligence. The lien should not be accepted as valid without scrutiny and confirmation that the filing requisites have all been correctly observed.
- Ensure that liens are satisfied from money received in settlement or judgment.
- Review Ethics Opinion 681 regarding third party interests in client funds when questions arise.
5. GET YOUR CLIENT’S APPROVAL ON ALL SETTLEMENT OFFERS
It’s pretty straightforward—any time an attorney acts legally without the expressed written or verbal consent of a client—that attorney opens himself or herself up to a potential legal malpractice claim.
Recommendations:
- Convey all settlement offers or get clear authority regarding acceptance or rejection of such offers.
- Ensure that your client fully comprehends the terms of the proposed settlement.
- All discussions, recommendations and actions taken should be documented. A client could forget that the attorney had advised her regarding the settlement and its terms. Or a client advancing a legal malpractice claim could seek to use the lack of documentation to her advantage.
6. PROCEED WITH CAUTION BEFORE COMMENCING SUIT IN A FOREIGN JURISDICTION
While it may be tempting to accept a client when you need the work, practicing outside your jurisdiction is an invitation to a malpractice claim. Numerous claims arise when the attorney misses the statute of limitations in another jurisdiction–whether arising from a failure to adequately research the applicable procedural rule in that jurisdiction or a failure to properly understand the rule.
Recommendations:
- Ensure that you’re able to practice in the applicable foreign jurisdiction.
- Seek qualified counsel in the other state on issues where you may not possess the requisite expertise.
- If you decide to refer the case to another attorney, take care in understanding the rules surrounding referral fees. Historically, there were no specific rules regarding the payment of referral fees from one lawyer to another. But that has since changed, and referral fees in Texas must be based on either a “proportion of services” basis or a “joint responsibility” basis. And don’t forget to have the client sign off on such arrangement.
7. RESIST THE TEMPTATION TO DABBLE IN UNFAMILIAR AREAS OF LAW
Again and again, legal malpractice actions are filed against attorneys who decide to venture outside their area of expertise. Perhaps a personal injury attorney accepted a tax controversy or bankruptcy case. Lawyers may feel particularly tempted to accept such a case where a lucrative claim is presented, or a family member or friend asks for help and the attorney feels obligated to do so.
Recommendations:
- Be honest with yourself–ask yourself whether you possess the sufficient skill, training, and experience to handle the legal matter at hand.
- Dedicate the time and resources to obtain the requisite knowledge and expertise.
- If you do not have time and resources to acquire the necessary knowledge and expertise, decline the case.
