Part One: Steps to Avoid Malpractice Claims for Plaintiffs’ Lawyers
Legal MalpracticeWhile none of us are infallible, malpractice claims can be avoided in most situations. Here are some of the most common ways that plaintiffs’ attorneys can find themselves in hot water, as well as suggestions as to how to steer clear of a legal malpractice claim.
1. PROPERLY CALENDAR EVERYTHING AND ACT WELL BEFORE DEADLINES
Missed deadlines may be the most common source of malpractice claims. This often happens where the attorney is mistaken as to the deadline—relying on the client to provide the date of injury without independent verification, or assuming that an out-of-state tort claim has the same statute of limitations period as Texas. Bottom line, assuming you know the deadline puts you in dangerous territory.
Calendaring errors are another common cause of malpractice claims. This may result from failing to enter a key deadline in the calendar system, simple (and easily avoidable) clerical errors, not using a back-up calendar, waiting until the last minute to file documents, or failing to check the work of your staff.
Recommendations
- Don’t wait until the last minute to complete tasks and file documents.
- Consider investing in a practice management software with a digital calendar with automated reminders.
- Use a backup calendar.
Remember that you’re responsible for the work of your staff, so create an environment where your staff feels comfortable asking questions and ensure their work is properly reviewed.
2. DOCUMENT WHO IS (AND WHO IS NOT) THE CLIENT
Plaintiff’s attorneys run the risk of a claim from non-clients by failing to properly document who is, in fact, the client. In Texas, an attorney can have a duty to disavow an attorney-client relationship if a person “reasonably believes that the lawyer represents them.” Parker v. Carnahan, 772 S.W.2d 151 (Tex. App.-Texarkana 1989, writ denied).
This situation may arise where an attorney believes she is representing an injured child, but the parents thought they were represented as well. The lawyer may now face an unanticipated claim from the parents.
Many malpractice claims also stem from situations where an attorney has decided not to take a case but fails to send a letter documenting that fact. An attorney could face a malpractice claim if the potential client does not retain counsel and the statute of limitations expires. The potential client may allege that he believed the attorney agreed to represent him, and without a declination letter it’s simply the attorney’s word against the potential client’s word.
Recommendations
- Use engagement letters and contracts. Specify who is and who isn’t the client.
- Any time you decline to represent a potential client, send a declination letter right away.
- Use non-engagement letters. A lawyer may find herself working with unrepresented parties. Be sure to provide a letter to those parties stating that you’re not representing them, and they should consult their own counsel if questions arise.
- Act within scope of representation documents. Even if you have otherwise documented the attorney-client relationship appropriately, giving advice to non-clients or acting on their behalf may create duties to those persons. Failing to document the relationship could potentially expose an attorney to a claim of negligent misrepresentation of facts when the non-client relies on the lawyer’s representation of those facts (e.g., an attorney tells the non-client that they have until a certain date to file suit).
3. REPRESENT ONE CLIENT PER LAWSUIT
Another common way to face a malpractice claim is by representing more than one client in the same matter. One client may think you favored another client’s interest client. Or, if there are limited funds to recover in a personal injury claim, these injured parties could have conflicting interests.
Recommendations
- Avoid representing more than one client when possible.
- When representing two or more clients, tread carefully.Be mindful that you must make disclosure of potential differing interests. You must report relevant information to all clients. The likelihood of facing complaints increases with multiple clients.
4. RESIST THE URGE TO SUE YOUR CLIENT FOR FEES
Of course, you should be paid for your work, but suing a client for fees is an invitation for a legal malpractice claim. More often than not, however, suits for fees are not worth the risk. Keep in mind that a legal malpractice claim is a compulsory counterclaim to an attorney’s suit for fees. When initiating a suit for fees, the client will scrutinize your work to identify any possible mistake to support a claim for malpractice.
And don’t forget to take insurance into account. There are insurance companies that exempt coverage from all malpractice claims filed as a counterclaim to an attorney’s suit for fees. It’s also worth considering the possible increase in insurance premiums and payment of the deductible.
Recommendations
Set yourself up for success by taking measures to prevent a fee dispute from arising in the first place. This includes:
- Keep fees reasonable. Take the time to re-review Texas Disciplinary Rule of Professional
Conduct 1.04 regarding attorney’s fees. - Ensure that the fees are fair under the circumstances. While there is no rule that fees cannot exceed the amount recovered, consider how that will land with your client. This is especially important if the client didn’t get exactly what he wanted.
- Provide a clear and accurate explanation of how fees will be calculated, and document it in writing. Ensure that the contract is free from ambiguity.
5. MANAGE CLIENT EXPECTATIONS
Overpromising and failing to deliver is an easy way to invite a malpractice claim. Thus, clear communications with a client from the very beginning is a necessity.
Recommendations
- Never guarantee a particular result in a case. Doing so could provide the basis for a breach of contract action. In a breach of contract action, the client does not need to hire an expert witness to establish the lawyer acted below the standard of care. Rather, the client could simply offer evidence that the attorney promised a particular result but failed to make good on that promise.
- Avoid the temptation—particularly during the initial consultation—to hype up the strength of your client’s case or the weaknesses of the opposing party’s case. Ensure that you’ve addressed the potential issues that may arise in the case, and always document it in writing.
- Ensure your standard retainer agreement includes a “no guarantee of success” provision.
Join us next month where we’ll give a few more examples and recommendations on how to avoid malpractice claims for plaintiffs’ lawyers.
