Top 5 Tips to Avoid Malpractice Claims

Nov 5, 2021 10:00:00 AM



Dealing with a malpractice claim can be very stressful and take a lot of time away from your business and clients. In addition to lost revenue, you may have to pay a settlement, court costs, and your own attorney’s fees. Your reputation as a lawyer could also suffer permanent damage. 

Here are five tips to help you minimize your risk of malpractice claims, keep your legal practice organized, and take care of yourself. 

1. Get on the Same Page

Representing a new client means listening to their needs and objectives. When you are sure that you are in tune with your client’s expectations, be sure to put the scope of your representation in writing. This will keep you both on track as your client’s matter progresses and protect you if things go wrong and your client’s expectations are not met. 

When your representation of the client has concluded, send the client a closing letter thanking them for the opportunity to represent them, affirming that the goals of the matter were met, confirming that you followed through on the agreed-upon scope. You could also send a thank you note as well. These communications will create a written record to prove that you did not stray from your client’s wishes.

2. Coordinate Your Calendar

Keeping track of important dates is one of the best ways to avoid problems that can lead to a malpractice claim. The first step is to accurately record all critical dates and deadlines and double-check them. Ask an associate to serve as an extra set of eyes to make sure your calendar dates are entered correctly.

Although many of us keep a cloud-based calendar, you should record these important dates offline or even offsite. You never know when your password will fail or when a giant digital media company will be the target of a cyber attack. Make sure to keep your offline calendar updated when dates are added or changed.

Speaking of the unexpected, one of the best calendaring practices is to complete your tasks ahead of their due dates. You never know when a crisis will strike your business, your family, or even your health. Completing your work ahead of time is a valuable insurance policy for when unexpected events occur. 

3.  Organize Your Communication Records

Another way to minimize the risk of a malpractice claim is to thoroughly document your decision-making processes. As your client’s matter progresses, the goals and strategies that you and your client initially agreed upon can change drastically. 

Email threads can be confusing, so your best bet is to keep an updated communication spreadsheet after each email, phone call, or live meeting with your client. The spreadsheet will record the date, mode of communication, and a brief description of what the communication entailed or the advice that you gave. This will protect you if the client later complains that you failed to pursue goals that may have changed from your initial discussions.

4. Remember Who Works for Whom

Happy clients provide referrals and repeat business. Although you may be busy, making yourself available to your client during regular business hours will improve your relationship with them and reduce their frustrations. Keep in mind that your client can tell by the tone of your voice whether you are pleased to speak with them or you view their phone call as an interruption.

In addition to making time for your clients’ phone calls, make sure to respond promptly to your clients’ requests. Send your clients detailed billing statements to eliminate confusion over the work you performed and how much you charged. And, be careful to check outgoing documents for accuracy, as one incorrect digit can lead to a big problem.  

Part of your job as an attorney is to make sure the client is well informed on the status of the representation. Nobody likes to be the bearer of bad news, but that news will come out eventually, so make sure the client hears it from you. That way, you can immediately provide your client with a plan of action and prevent panic. Staying proactive in communication even when things are not going well can reduce the risk of an acrimonious relationship with your client. 

5. Take Care of Yourself

As you juggle deadlines and tasks for multiple clients, sometimes the one person you fail to take care of is yourself. Overworking can lead to burnout, depression, and costly mistakes. Turning off “work mode” can be difficult, however, especially because working from home has become commonplace. You may think you are being productive and responsive to your clients, but regularly working until late at night will eventually catch up with you.

Take breaks during the day, and do not work while you are eating lunch and dinner. Choose a reasonable time each day to stop taking calls and responding to emails. Remember, there will always be work that needs to be done (until you retire!), so it is okay to leave tasks for the morning. 

Learn to Avoid a Legal Malpractice Lawsuit

The following are some of the most common legal malpractice claims:

  • Conflict of interest
  • Misappropriation of client funds
  • Allowing a statute of limitations to expire
  • Billing fraud
  • Frivolous litigation
  • Breach of fiduciary duty
  • Breach of attorney–client privilege

Accidents happen. Just like the best doctors, even the most conscientious, well-intentioned attorneys can face malpractice lawsuits. Attorneys must do what they can to avoid costly mistakes and miscommunications to minimize their risk of malpractice claims.

Stay up to date on your ethical obligations as an attorney and earn CLE credit by watching any  of our on-demand webinars. Browse our ethics courses here.

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