Professional Liability Attorney, George Rockas, takes time to identify the most frequent causes of malpractice claims and some practical advise on how to avoid them.
Every malpractice claim is different, but if you take the time to follow these best-practices, your likelihood of a claim will certainly decrease.
Poor Relationship with Client
Work to make the client like you, and provide good service. Return phone calls and e-mails promptly and otherwise be responsive. Do not talk down to the client. Keep the client informed about the matter you are handling.
Inadequate Knowledge or Preparation
Do not handle matters involving issues about which you have little or no experience or skills. Refer to others matters which you are not qualified to handle. Keep up on new developments in your practice area.
Failure to Define the Scope and Terms of the Representation
Send each client an engagement letter which explains the terms and scope of the representation. This avoids misunderstandings later on about what you were supposed to do.
Working for “Trouble” Clients
Part of avoiding malpractice claims is to avoid clients who appear to be nothing but trouble. This can be done with appropriate client screening, including the use of in-take questionnaires. Do not take on clients who you learn have history of “firing” professionals. If a client turns out to be nothing but “trouble”, you should be prepared to stop working for him and to exit the relationship as gracefully as possible.
Suing A Client for Fees
All to often, when a professional sues a client for fees, the client files a retaliatory claim for malpractice. Avoid suing clients for fees, especially when the fees at issue are relatively modest. Bill clients regularly and make sure bills are reviewed for accuracy and reasonableness before they are sent out. Do not overbill. Make sure the fee arrangement is in writing.
Conflicts of Interest
Before taking on a new client, make sure your representation of him does not conflict with your representation of an existing client. In other words, do a conflict check before starting work on a new matter. If a conflict does exist and you decide to take on the matter anyway, make sure the client waives the conflict in writing after full disclosure.
Inadequate Documentation of File
Make sure key events and conversations are documented either through “memos to the file” or confirmatory letters. For example, if you obtain a waiver of conflict of interest from a client, make sure it is in writing and with full disclosure. If you obtain a deadline extension, confirm it in writing. If a client declines to follow your advice, confirm in writing the advice, and the fact that the client declined to follow it and detail the potential consequences.
Have at least two calendaring systems, one primary and one backup. If the deadline involves action to be taken by the client, inform the client well in advance of the deadline what action he must take and remind him of the deadline on multiple occasions.
Psychological Problems and Substance Abuse
It takes one professional in your firm with mental health or substance abuse problems to create claims. Be aware of what others in your office are doing and how they are behaving. Be willing to intercede and obtain help.
Giving In to Temptation
Abide by rules of professional conduct. Let your conscious be your guide. Do not “bend” or break the rules for “good” clients, even when the client asks you to do so.
George C. Rockas Wilson, Elser, Moskowitz, Edelman & Dicker LLP George C. Rockas is the Managing Partner of the firm’s Boston office. He focuses on legal malpractice and other types of professional liability defense and coverage, and all types of insurance coverage and fidelity claims. Mr. Rockas has over sixteen years experience defending professional liability claims and working in insurance coverage.