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How New Lawyers Can Avoid Malpractice Nightmares

Sept. 18, 2015, 7:40 PM

Editor’s note: The author of this post is a fellow at CodeX: The Stanford Center for Legal Informatics and is a member of the California bar.

By Monica Bay, Fellow, CodeX: The Stanford Center for Legal Informatics

This Thursday, the American Bar Association’s National Legal Malpractice Conference offered an hour-long session for young professionals on “The New Top Ten: Preemptive Strategies to Avoiding a Lawsuit.”

The panel featured Rachelle Bin , assistant general counsel at Fox Rothschild, Risa Kliener , claims consultant, CNA; and John Sullivan , a partner at Long & Levit.

Key takeaways from the panel:

Beware of Conflicts: Waivers recognizing potential conflicts, especially in practice areas that typically involve husbands and wives, such as trust and estates, are essential, said Bin.

Likewise, be sure to get waivers in just about any situation where you are representing more than one person, the speakers said. Decide at the onset what will happen should a conflict appear.

When you do represent two or more parties, have a candid discussion about the pros and cons of joint representation, said Bin. It’s easier to get waivers in the beginning of the engagement that when trouble brews, the panelists cautioned.

Who is the client?Be clear about who the client is. Be careful about “parent” and “subsidiary” companies, the panelists warned “Be aware of who is on a call. Make it clear who you represent,” said Kliener. “You can’t put your head in the sand,” said Sullivan.

Screen Your Clients: Even though you might be eager to sign up a client, take your time and screen the potential client, said Sullivan, adding, “Watch out for crooks.” Before you sign up a client, find out if she or he was previously represented, and ask the potential client if you can speak to the prior attorney.

• Obtain a written fee agreement: Be sure that you identify all new matters, key elements and identify the client(s), said the panelists. Define the scope of the work, and how files will be distributed. “State what you are — and are not — going to do,” said Bin.

If the client is able to pay, you should obtain a retainer, and think twice if you are concerned that a client may not be able to afford your services, the panelists warned. Bill regularly and be sure the bills are paid in a timely fashion, they suggested. If the client goes bankrupt, “you may not be able to collect your fees,” said Sullivan.

Another warning: Some jurisdictions (including California) require a written fee agreement — if you don’t have one you may jeopardize your ability to get the fees you orally agreed to should there be a conflict.

Put it in writing: Always put important information in writing, the panelists urged, including advice, settlement discussions, strategies and deadlines. “Manage client expections—litigation is unpredictable,” said Bin.

Document when a client refuses or is unable to follow advice, and doesn’t want to spend the money for depositions or e-discovery.

Be careful about what you say and write(especially in social media): “No matter how bad the client is, don’t put it in writing. No negative comments!” instructed Sullivan. Be very careful about the “helpful” features like auto-fill addresses, spell checks, etc., that can accidently send your communication to the wrong parties, the panelists said. Don’t use caps (shouting). Be careful about “redlines” that can disappear when moving data to other devices and can completely change the meaning. Use two calendars to minimize missed deadlines, they suggested.

“Take the time to do the research, but let clients know that you’re ‘on it,’ ” said Kliener.

Don’t sue for fees: “Just don’t do it,” said Sullivan — it will inevitably trigger a malpractice counterclaim. And if you do sue, be sure that the statute of limitations has expired (one year in California, four years in New York and six years in New Jersey), said Bin.

• The bottom line: “How you treat your client will influence how your client treats you when things go wrong,” said Bin.