We’ve all thought it…Not me! There’s no way I’ll ever have a malpractice claim made against my firm. But the truth of the matter is; claims can happen to anyone. However, the good news is, there are actions you can take in your day to day business as an attorney to avoid malpractice claims. Of course, there is never a guarantee, but putting these procedures in place, can certainly help avoid a claim from coming in.
1. Set up a Diary System
One of the most common reasons firms’ experiences claims is due to missing important deadlines. Attorneys have many dates and deadlines to manage and it’s easy to have one slip through the cracks. Unfortunately, one missed deadline is all it takes to have a claim brought against you.
To avoid this potential issue, the firm should have a diary system set up and accessible to the entire staff. Every attorney and staff member should be utilizing the diary system and keeping it up to date. Additionally, the firm should have a backup system in place in case the system goes down.
When using the diary system, it is wise to also include reminders in addition to important dates. It doesn’t help to have it on the calendar if the calendar isn’t helping to remind you of important dates approaching.
2. Supervise Staff and Associates Properly
As an attorney you may do everything right, but if you have associates or staff, it is also your responsibility to make sure they are properly trained and supervised. It doesn’t matter who commits the malpractice, as the owner, it still falls on your head. Start on day one to appropriately train staff in firm best practices, policies, procedures and professional standards and continue that training throughout the entirety of their employment with the firm.
3. Communicate Effectively
Of course, we all know how important communication between yourself and your client is, but sometimes effective communication can be a challenge. When you are having a conversation with a client; be responsive, listen carefully and be understanding. Showing your support and empathy can make a huge difference in the client’s experience with you and your firm.
Even more important than the communication itself is the documentation of the interaction. Be sure to put anything discussed with the client in writing to avoid potential client misinterpretations. Additionally, always confirm important dates in writing. If there is a discrepancy down the road, you will be grateful to have the documentation you need to support your defense.
4. Choose Clients Carefully
When a potential client comes to you for representation, it is extremely important to interview them carefully before taking them on as a client. You can save yourself a lot of hassle down the road be weeding out potential problem clients. The potential client may have unrealistic expectations or may be demanding, pushy or overly critical. Weeding out these clients could save you from a major headache in the future.
Another potential problem to be aware of is a client looking for representation in order to be vengeful. If they are vengeful and angry against someone else, be sure they will have the same feeling against you if it doesn’t go their way.
5. Avoid Fee Suits
You have done a lot of work and sent your client your bill. Why haven’t they paid you yet? Should you file a fee suit in order to get paid? This is a treacherous line that can lead to a claim that will cost you a lot more than the amount of your bill. Before filing a fee suit, you should ask yourself several questions.
- What are your chances of winning?
- Are your fees reasonable, or could they be considered excessive?
- What will happen to the reputation/public relations of the firm if you file this fee suit?
While sometimes fee suits are unavoidable, there are ways to limit potential fee suit issues.
- Always be upfront regarding your fees.
- Have a conversation at the beginning of the engagement
- Use retainers
- Always bill promptly
- If you send things in smaller portions, it is easier to swallow for your client
- And most importantly, be prepared to walk away from the situation when necessary
6. Use engagement letters
Engagement letters establish the client attorney relationship from the beginning. The client is provided, in writing, what you will do, how it will be billed, what can be expected from you, and what is expected of the client. Engagement letters define the contract, outline the structure of the engagement, and state the responsibilities and obligations of both parties. This is an easy step to skip if you are not diligent. By having this information in writing, the client can never say they didn’t understand what to expect or what was expected of them.
Of course, claims happen, even when you do everything by the book. There are many complexities and inherent risks that come with owning and running a law firm, but with a little time, effort and due diligence, you can exponentially reduce the likelihood of having a claim made against you or your firm.
Posted by Tonya Wentz
Tonya Wentz is a Sr. Account Executive at Protexure Insurance Agency, Inc. Tonya enjoys assisting law firms with their professional liability needs. Prior to joining Protexure in 2015, Tonya spent several years working in another agency setting as well as several years in claims. In her spare time, she travels the country going to lacrosse tournaments with her high school son and visiting her daughter in Nashville. Tonya has a BS degree in finance and marketing.