4 Common Mistakes That Can Lead to a Legal Malpractice Suit

Lawyers never want to make a mistake, but juggling deadlines, long hours, and personal and professional demands can make it difficult to produce a flawless work product in every case. And even the most meticulous lawyer is human and thus bound to make a mistake at least once in their career.

However, not all errors are equal. Some errors, like a missed call or a lost document, can be easily rectified. Other errors, like inadequate research or overlooking major conflicts of interest, are not so easily remediated and pose a bigger malpractice threat.

Four common types of mistakes that can lead to an attorney malpractice suit include: errors of law, administrative errors, discovery errors, and judgment errors. We will provide you with some information on each basic type of error and examples of mistakes that can lead to malpractice suits.

1. Errors of Law

According to the American Bar Association (ABA) Standing Committee on Lawyers’ Professional Liability, errors of law make up a significant proportion of malpractice claims against attorneys. This is according to its comprehensive survey of insurance carrier data from 2016-2019.

Performed Inadequate Legal Research or Preparation

Attorneys must conduct thorough legal research and preparation to provide competent representation. Inadequate research or insufficient case preparation can potentially result in a malpractice claim.

Performed the Research But Missed the Mark

One type of substantive legal error occurs when an attorney completes research correctly but fails to properly understand or apply the appropriate principles of law in their work. Another type of potential malpractice is when an attorney has completed the work but is still unaware of the legal principles involved in representing their client.

Best Practices to Protect Yourself Against Errors of Law

Errors committed in properly applying the law may affect solo practitioners because of the lack of a “team” to vet research or drafting. In fact, malpractice cases were most likely to be filed against solo practitioners or small firms of between one and five attorneys. Recent ABA data shows that more than 70% of malpractice claims are filed against law firms of five or fewer attorneys.

While it is always important to be sure you have comprehensive Texas malpractice insurance, one way to help ensure you can protect against legal errors is to discuss matters with legal colleagues when you need to “gut check” an issue. However, be sure to not run afoul of revealing confidential information related to your client. See Texas Rule 1.05. If you do not have a colleague or mentor to call upon, consider bringing on co-counsel with expertise in the applicable area of law. Sharing a fee will be far less expensive than defending a malpractice claim down the road, and it will allow you to attain valuable knowledge about an area of law in which you may not be as well versed.

Another way to avoid legal errors is to use different search tools to double-check any research you perform. Simple internet searches are not a substitute for using true legal databases that update with the most current information direct from state legislatures and courts. Before taking on any new matter that requires research as to law, make sure you have the time and bandwidth to do the necessary thorough and adequate research.

2. Administrative Errors

One of the top complaints clients bring when suing for malpractice is that their attorney missed a deadline. The second most common complaint is that the attorney procrastinated or failed to follow up when responding to client needs.

Missed Deadlines or Statutes of Limitations

When an attorney takes on a matter—whether a lawsuit or a transaction—they are responsible for managing deadlines and ensuring paperwork is timely filed. Failing to meet deadlines can harm a client’s case and potentially result in a malpractice claim.

Inadequate Communication or Lack of Responsiveness

Effective communication between attorneys and clients is essential, and failing to keep clients informed about the progress of their case, not responding to client inquiries, or not providing necessary updates or information can contribute to dissatisfaction and result in malpractice claims and grievance complaints filed with the Texas State Bar. Not only is good and timely communication necessary to run a successful practice, it is ethically required by attorneys. Texas Rule 1.03

Best Practices to Avoid Administrative Errors

Find a deadline management system that works for you! Some attorneys are satisfied with the old-fashioned pen-and-paper method and never miss a meeting or deadline using their desk calendar. Others need sophisticated online systems to juggle statutes of limitations, filing dates, and multiple settlement conferences with various colors, sounds, and types of ticklers. As your practice grows and changes, be sure to be open to investigating the right method or software for you and your business.

Utilize a dual or backup system. This could be entries on both a physical and electronic calendar, or an additional entry on a firm-shared calendar. You may want your secretary or assistant to also calendar deadlines to timely remind you. However, do not become too reliant on assistants as you, as the managing attorney, are the person ultimately responsible for the error.

Calendar items immediately. We all get distracted and if time passes, you may forget to calendar it at all. In addition to scheduling the actual deadline, also calendar reminders in advance to give you sufficient time to do the work necessary so the deadline is met.

Staying on top of deadlines can also help you stay on top of client communication. Getting both under control can help you avoid two of the top issues leading to administrative malpractice claims.

3. Discovery Errors

Discovery errors happen when a client alleges that their attorney failed to conduct a careful investigation or devote a sufficient amount of time to discovering facts. Missing documents, mismanaged discovery, failure to dig deeply into facts, and similar issues can all result in malpractice cases. If you have a client who instructs you not to do certain discovery to keep costs down such as limiting depositions or not authorizing the hiring of experts, make sure you confirm the limiting instruction in writing and warn the client that it may negatively impact their matter.

Best Practices to Avoid Discovery Errors

A good practice for attorneys is to outline upfront what discovery and investigation may be required and calendar deadlines to complete items on the list. Attorneys should also revisit their case at the completion of discovery, but before the passing of any deadlines, to ensure that they didn’t overlook anything. Communicate any findings and the import of the discovery with the client so they are aware how it may affect their matter. Often, discovery leads to the need to conduct more discovery. Nearly all discovery is conducted and sent electronically now. Using a reputable vendor you trust and who has a good reputation in your jurisdiction can help avoid errors and ensure the smooth delivery of materials to the other party or to the court.

Before finalizing your discovery, be sure to check your privilege log to avoid the disclosure of privileged information and confirm with your client that all documents are correct. You, as an attorney, have an ethical duty to maintain truthfulness even in statements to third parties. Texas Rule 4.01

4. Judgment Errors

Judgment errors stem from an attorney’s poor decision-making. These errors often expose attorneys not only to malpractice suits but also to potential disciplinary action. Thus, they represent some of the costliest errors for attorneys. In some cases, malpractice suits against larger law firms have awarded $150-$250 million to claimants for poor management of attorney conflicts of interest.

Conflicts of Interest

Attorneys must avoid conflicts of interest that may compromise their loyalty, objectivity, or ability to act in the best interests of their clients. In some cases, even the appearance of a conflict can create malpractice liability. Failing to disclose or manage conflicts of interest can lead to malpractice claims and ethical violations. Not only do conflicts arise with current clients, consider your duties to former clients. Watch out for situations where you may be in an intermediary position or in a matter where your representation of parties may be prohibited even with a signed conflict waiver. If you find yourself in a conflict situation, be prepared that you may need to withdraw and forgo any fee to comply with your ethical duties.

Mishandling of Client Funds

Texas lawyers have a fiduciary duty to handle client funds appropriately through client trust (IOLTA) accounts. Mishandling client funds, such as commingling them with personal funds or using them for unauthorized purposes, can lead to malpractice allegations and other potential civil and disciplinary claims. The Texas Bar has resources for attorneys to help mitigate risk and avoid common mistakes that lead to malpractice claims. An allegation that an attorney mishandled client funds is one of, if not the most seriously taken complaints that the Texas Bar will investigate.

Breach of Confidentiality

Attorneys have a duty to protect client confidences. Disclosing confidential information without client consent or failing to take appropriate measures to protect client information can result in allegations of malpractice and breach of the ethical rules. Texas Rule 1.05

Best Practices to Avoid Judgment Errors

Make sure you have a robust conflicts check system for your firm. Lawyers may want to consider software or periodic third-party review of their conflicts as a safeguard against malpractice claims. Having this key safeguard in place while also having evidence of having performed a conflicts check demonstrates good judgment. Access to IOLTA accounts should remain with you, as the attorney, or extremely limited. Be sure to reconcile monthly and do not give administrative staff access to client funds. Additionally, while solo practitioners and small firms may want to share ideas and resources to help mitigate malpractice risk, make sure to take appropriate precautions to ensure client confidentiality. Having layers of protections and a strong approach to best practices in running a law practice will help you avoid committing judgment errors.

Conclusion

These are just a few examples of potential mistakes that may give rise to a legal malpractice lawsuit. Each case is unique, and the specific circumstances and applicable laws vary. If you believe you have a potential legal malpractice claim, first contact your professional liability carrier if you have insurance so they can assist and provide you defense counsel as needed. If you do not have insurance, it is still important to consult with a qualified attorney who specializes in legal malpractice to evaluate your situation. If you’re a TLIE insured and are concerned about a claim, please contact us.

By TLIE