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Tips for Lawyers

To Avoid Legal Malpractice Claims

The following tips cannot guarantee you will not be sued, but based on almost 30-years of handling legal malpractice cases, it is my opinion that following these tips will significantly reduce your chances of being sued:

PUT YOUR CLIENT’S INTEREST AHEAD OF YOUR OWN

When in doubt, err in the client’s favor. Think not what you “can” do, but what you “should” do.

MAKE THE CLIENT HAPPY

Reduce fees, reduce expenses, send the client a gift. A happy client is far less likely to complain if something was missed. ALSO, a happy client is good PR for you and your law firm.

HOURLY BILLING

Be specific and detailed in your hourly bills. Billing 4.0 hours for  “work on file,” or other vague time entries is begging for trouble.

CONTINGENCY FEES

There is no rule that states you cannot get more money form a settlement that the client; however, I would avoid it. I try to work for a 50-50 recovery if possible (after 40% fee plus expenses). Anything less to the client can create problems. Some attorneys ultimately show a “net” recover of 5-15% to their clients after deducting fees, hand-picked doctors, legal lending/loan companies, etc. This is almost guaranteeing a lawsuit and/or grievance being filed by the client.

PUT IT IN WRITING

Document important issues.

 

Examples include:

  • A decision to not sue a specific party;
  • A decision not to pay for an expert witness;
  • A decision to keep costs/expenses down;
  • A decision to dismiss or non-suit a party;
  • A decision not to designate a responsible third-party.

 

Always document such acts/omissions with the client so they cannot blame you for such acts later.

OWN YOUR MISTAKES

If you drop the ball, own it! Do the right thing by your clients. Many, if not most clients, do not want to sue their attorney.

CARRY MALPRACTICE INSURANCE

Carrying malpractice insurance protects you, your law firm, and more importantly, your client. Claiming that you “do not want to be a target” or that malpractice insurance coverage is too expensive are not valid excuses. Protect your clients!

ARBITRATION AGREEMENTS

I do not advocate including arbitration agreements in your client contracts. Ask yourself if you’re inserting it to protect your clients or to protect yourself. Just because the Texas Supreme Court says its okay does not make it right. Remember, it is better to “do” right than to “be” right. Unless you represent large corporations, it is almost never in your client’s best interest to arbitrate their claims against you for malpractice. 

LOANS TO CLIENTS

Avoid giving loans to clients. If loaning money to a client appears to be unavoidable, always document the reasons for the loan(s), that you have explained the potential negative consequences of the loans to your client(s), and that you have provided your client with possible alternative solutions (e.g. banks, relatives, legal lending companies, etc.).

BUSINESS WITH CLIENTS

When entering into a business relationship with a client, operate under the following rules:

  • Be fair;
  • Be open;
  • Be honest;
  • Recommend that the client obtain independent counsel; and
  • Document the pros and cons of entering into the relationship and provide such to the client.
POWER OF ATTORNEYS FOR CLIENTS

This begs for trouble. NO, NO, NO! Don’t do it! Including language in your contract that allows you to sign settlement papers and settlement checks for your client should be avoided.

INVOLVE THE CLIENT IN ALL SETTLEMENT DISCUSSIONS

Make sure to keep the client updated on any and all settlement discussions as well as document the decisions that the client makes.

WWJD

When in doubt, ask yourself “what would a jury do?”

Still have more questions? Feel free to reach out via phone or email.