The American Bar Association’s Standing Committee on Lawyers’ Professional Liability recently issued its eighth Profile of Legal Malpractice Claims which examines data collected from participating lawyer malpractice insurers covering the years 2016-2019.
While the report gives a high-level overview of claims data, at Protexure we are taking a deeper dive into some of the implications this data makes.
Previously we explored the Interaction Between The State of The Economy and Lawyers Malpractice Claims and how to Reduce Legal Malpractice Claims with Administrative Error Control.
Another key takeaway after reviewing the most recent American Bar Association Profile of Legal Malpractice Claims: keeping current with developments in the law and societal trends is an essential risk management tool.
Emerging Legal Malpractice Risk
Every iteration of the ABA’s survey has revealed categories of “emerging” risks from the period covered. Sometimes the risks are familiar but on the rise: a new or marked increase in improperly filed documents claims; a trend toward lack of communication complaints; an increase in claims involving family law or business transactions.
Usually, these trends can be traced to corresponding changes or trends in legal processes or the general economic or societal situation. As computers and email came on the scene, lawyers still getting used to the new technology stumbled when using new e-filing systems.
While the world transitioned from landlines and snail mail to cell phones and email, lawyers may have found it more difficult to consistently contact their clients in a timely manner. As we’ve discussed in the past, economic trends clearly influence area of practice risk: when the economy is worse, transactions practice risk rises.
Sometimes, though, the “emerging” risks are not so familiar or specifically predictable but instead rest in outside developments that no one was prepared for, like, say, civil unrest or a pandemic. The world’s focus shifts, new opportunities or unfamiliar situations arise for lawyers’ clients, things don’t work out as well as the client had hoped or expected, and the lawyers find themselves facing claims that they should have averted the problems.
How To Best Manage Legal Risk
The fact of the matter is, when the economic, social, and legal landscape gets bumpy, people turn to lawyers to help them navigate. Essentially, lawyers are regularly asked to be fortunetellers: a lawyer’s job is to try to predict what problems could arise in the future and then help the client make a plan to mitigate the potential effect of those problems if they do come to be. Clients expect lawyers to understand what sometimes hasn’t yet been defined or understood by anyone else.
On the one hand, that responsibility can be one of the most attractive things about practicing law. It requires creativity to assess someone’s current circumstances and consider all the variations of how their situation could unfold. On the other hand, such expectations can be unreasonable, setting lawyers up for a lot of risks. Clients rely on lawyers to operate on the cutting edge. Lawyers are expected to anticipate changes in the law or in societal norms and help their clients to avoid the pitfalls those changes or trends might bring.
So, how best to manage these risks?
First, stay committed to keeping up in your primary areas of practice. Stay up to date on your reading. Set aside time to review the newest decisions in your geographic area as well as your practice focus. Keep up with the news. Talk with innovators in the business areas your clients operate in. Become an active member of professional organizations that cover areas you work in so you can learn what other thinkers in the area see on the horizon (it’s good for networking new clients, too).
Second, don’t skimp on continuing education. Even if your jurisdiction doesn’t require it, sign up for some CLE. Sign in to that seminar on emerging trends in the law. Read the articles from your law school alumni magazine and your local bar association newsletter. Better yet, volunteer to lead a seminar or write an article so that you are forced to do some research and think about how the law and clients’ circumstances could change beyond just as a reaction to the matters presented to you in practice.
A wilderness guide equips themselves with good maps and sturdy equipment. Clients seeking to be led through the murky waters of the legal, economic, and social landscape expect their lawyers to be properly equipped too. Keeping up with keeping up is good risk management for every lawyer.