Most lawyers have probably wondered how to avoid legal malpractice claims at some point in their career. Though malpractice is not inevitable, it happens often enough that even the best lawyers need to stay vigilant.
Ross Sears from Sears Crawford, L.L.P. has acquired extensive knowledge from almost 30 years of handling Legal Malpractice cases. Though our practice’s tagline is “We Sue Lawyers,” this does not mean we want to see good lawyers bogged down by preventable lawsuits from dissatisfied clients.
Sometimes, common sense principles are the best way to avoid legal malpractice, but knowing how to avoid legal malpractice claims isn’t always that simple. Based on our experience with many different kinds of legal malpractice calls and cases, we’ve found that the following tips can be useful in helping to avoid legal malpractice claims.
Number one on our list of how to avoid legal malpractice claims is to always put your client’s interests ahead of your own. ALWAYS PUT YOUR CLIENT FIRST. When in doubt, err toward whatever is in the client’s best interest. Instead of thinking about what you “can” do, think about what you “should” do. As lawyers, we owe a fiduciary duty to our clients. This is the highest duty imposed by law. It has been our experience that most clients do not want to sue their attorney; don’t give them a reason to change that opinion of you.
Going the extra mile is a great way to avoid dissatisfied clients. Reduce fees, reduce expenses, send the client a gift. A happy client is far less likely to complain if something was missed and far more likely to provide good PR for you and your law firm.
Be specific and detailed in your hourly bills. Billing 4.0 hours for “work on file” or other similar, vague time entries is begging for trouble. Vague or misleading time entries is a big complaint for many clients against their attorney. Make the entries clear enough that if you had to explain your work 3 years later you would know exactly what you did.
Is it possible to get more money from a settlement than the client? Yes, it is possible; however, it is best to avoid it. Try to keep your contingent recovery between 40–60% of the gross recovery (including your expenses), if possible. Some attorneys settle their case(s) and show a “net” recovery of 5-15% to their client; this is almost guaranteeing a legal malpractice lawsuit and/or grievance being filed by the client. Be fair in all your dealings with your client.
One of the most common elements of a legal malpractice claim is the lack of proper documentation by the attorney. It can be a pain to document everything, but doing so is one of the most surefire ways to protect yourself, and thus one of our top tips for how to avoid legal malpractice claims.
Always document important acts/omissions as well as the clients’ compliance with the decision so that the client cannot blame you for the outcome later. If it is not in writing, the lawyer will most often lose that battle when the client says “the lawyer never told me that”.
Whether information is bad news, feels relatively unimportant, or is highly complicated information that the client doesn’t technically “need to know,” it is always in your and your client’s best interest to be honest and transparent when it comes to important issues in the case. The cost of not sharing/documenting this information can be exponentially higher than the amount of time it would have taken you to put it in writing.
Not only do the disciplinary rules require you to disclose any mistakes that threaten your client’s interest, you should want to do the right thing by your clients. If you drop the ball, own it! Honesty can go a long way, and identifying and relaying the problem is the best way to find a solution with your client. Many, if not most clients, do not want to sue their attorney.
As with any apology, it’s important to be careful of what you say and how you say it so as to not damage the relationship and create potential conflict. Try to avoid being defensive and remain open throughout the discussion of any mistakes you have made. I can’t tell you how many times I have had clients call me complaining about their attorney and saying, “I never wanted to sue my attorney, but they never apologized and never offered to help me fix it”.
Carrying malpractice insurance protects you, your law firm, and, most importantly, your clients. Claiming that you “do not want to be a target” or that malpractice insurance coverage is “too expensive” are not valid excuses. Malpractice Insurance is surprisingly affordable. Protect your clients and find the right malpractice insurer. For more information, read our blog post exploring why lawyers should carry legal malpractice insurance.
This tip for how to avoid legal malpractice claims may feel like a no-brainer, but you would be surprised by how many cases we’ve seen where loans are a central complaint against the attorney.
If loaning money to a client appears to be unavoidable, always document the reason(s) for the loan(s), the exact interest rate (if any), document that you have explained the potential negative consequences of the loans to your client(s), and document that you have provided your client with possible alternative lenders (e.g. banks, friends, family, etc.). These safety precautions will protect you and help you to avoid malpractice claims. Remember: Full disclosure!
This tip may seem like another no-brainer on the list of how to avoid legal malpractice claims, but it’s an important one to keep in mind, especially when clients are problematic. To avoid having a dissatisfied client who could potentially sue you for legal malpractice, operate under the following rules when entering into a business relationship with clients:
Obtaining legal power of attorney for your clients is asking for trouble. Do not include in your contract the right to settle your client’s case, sign documents, or endorse their checks. What is convenient in the short-term can lead to major headaches in the long-term.
For many attorneys, it may seem easier to give clients a briefing of the tedious back and forth negotiations involved in legal settlements after the fact. But no matter how slow or frustrating a negotiation process may be, your clients need to be a part of the process.
After all, what may seem like just another case to you could be the biggest ordeal of your client’s life.
When in doubt, ask yourself, “What would a jury do?” What would a jury do if they get to judge your conduct? Juries like good documentation, they hate excuses, and they want to see a clear delineation between right and wrong.
This is more of a personal issue for me, so you can make up your own mind on this one. The Texas Supreme Court says it’s ok for a lawyer to have an arbitration provision in their contract with their client. But just because you can, doesn’t mean you should. If we as lawyers are always required to put our client’s interests first, how can we then have them sign an agreement to arbitrate, which is in OUR best interest, NOT the client’s? Remember, it’s better to “do” right than to “be” right. I do not have arbitration agreements in my contracts with my clients.
If you find yourself facing down the barrel of an angry client’s accusations, do what you would advise your clients to do: seek help.
The State Bar of Texas has provided a hotline for attorneys who are dealing with ethical issues. The toll-free Ethics Helpline number is 1-(800) 532-3947.
Alternatively, if you have ethical questions on issues in your practice and need or want advice for your particular situation, or if you are searching for a legal malpractice attorney in Houston, Ross Sears from Sears Crawford, L.L.P is available to talk and brainstorm ways to help you and your clients, free of charge. Simply contact Ross Sears by emailing [email protected] or calling (713) 223-3333 today.