10 ways to avoid malpractice and disciplinary actions
The profession and the marketplace for the delivery of legal services are undergoing dramatic change, having been buffeted by tsunami-like forces during the past several years. Law schools are reducing the size of enrollment, staff and faculty in the face of declining applications and challenging employment prospects for graduates. Lawyers are experiencing painful rates of unemployment and underemployment in part because of increased competition from online legal services providers, law firm consolidation and the nation's slow recovery from its 2008 economic collapse. Courts are dealing with limited resources to address increasing demands for their services. Much of the public is still struggling to obtain legal services and continues to be dissatisfied with the cost, delivery and quality of the services that they do receive.
These challenging developments arguably increase the risk that lawyers will become the target of disciplinary proceedings or legal malpractice actions, especially given the complexity of the law and advances in technology that reduce the amount of time that lawyers have to reflect on substantive legal matters. This risk is heightened by the increased competition to deliver legal services in a cost-effective manner, the sophistication of clients who expect competent, efficient and reasonably priced services and the litigious nature of consumers. The risk is further exacerbated by the ever-changing methods of and rules governing electronic communication and the storage of information, and the magnitude of the risk is underscored by the prediction that law school graduates "will be the subject of three or more claims of legal malpractice before finishing a career."1
The 10 practice standards outlined below are designed to minimize the risk that a lawyer will become the target of a legal malpractice or disciplinary action. Adherence to these standards should also reduce the risk of a lawyer becoming the object of a disqualification or a Rule 11 motion. While some of these tips may seem a priori for some lawyers, they serve as a concise reminder and helpful roadmap for even experienced lawyers to avoid problems.1. Don't shoot from the hip
Lawyers should avoid giving off-the-cuff legal advice at social events or other occasions where persons seek their counsel about a problem. Lawyers should schedule a more formal meeting with the client, ideally at his or her office or even electronically, to properly interview the client. This reduces the risk of a lawyer giving bad or incomplete advice and underscores to the client the seriousness of the professional relationship. Remember, the threshold for establishing the lawyer-client relationship is a low one. The client's reasonable reliance that the lawyer is advising or representing the client establishes the professional relationship and potentially exposes the lawyer to civil liability for malpractice.2. Be prepared to say no
Lawyers often feel compelled to undertake representation for economic or other reasons. The "open-another-client-file" syndrome can create professional and personal problems for lawyers when they lack the expertise, interest, resources and time to competently represent the client. In this context, saying "no" or declining representation may be the best professional decision you make that day.3. Have a good system for checking conflict of interests
Clients are entitled to the undivided loyalty of their lawyers or "conflict free" representation. Lawyers must be mindful of the potential for conflict of interests before undertaking representation and throughout the professional relationship. There are four general categories of conflicts: conflicts involving current clients, former clients, a third party or the lawyer's personal interests. A reliable and efficient "conflict-check" system is a must for any lawyer.4. Use written retention agreements
An agreement to represent a client on a contingency fee basis must be in writing. Nevertheless, lawyers should memorialize in writing their personal services agreement with all clients, irrespective of the fee basis. The agreement should outline the material terms and conditions of employment.5. Don't commingle money
Lawyers must keep client funds separate from the lawyer's personal funds. This requires depositing client funds in either a separate trust account for the client or the lawyer's Interest on Lawyer Trust Account (IOLTA) account. An important related concept requires the lawyer to return all unearned client funds to the client. Remember also that lawyers must leave funds in the trust account when the client disputes the lawyer's entitlement to them. While lawyers are required to retain the portion of funds that are in dispute, the lawyer must promptly distribute the portion that is not in dispute.6. Know your professional liability (errors and omissions) insurance policy
Lawyers need to carefully read their professional liability policies. Does it contain a "burning limits" provision, where the legal and other costs of defending a malpractice claim are deducted from the policy's total liability coverage? You may not want such a provision. Also, make sure that the type of work you provide constitutes legal services and is covered by your policy. Offering financial investment advice is probably not the practice of law and not covered by the policy.7. Communicate with clients
A common criticism leveled against lawyers is their failure to communicate in a timely manner. Lawyers have an affirmative obligation to keep clients informed. Lawyers should have a "tickler system" in place to remind them to communicate periodically (or more often, if appropriate) with clients, even if it is just to inform them that there are no recent developments and that the lawyer has not forgotten them. It is not necessary that the communication be directly from the lawyer; an assistant can do it, as long as the assistant does not give legal advice. At the beginning of the representation, lawyers need to discuss with clients the confidential nature of their professional relationship, explaining the attorney-client privilege and Rule 1.6's ethical duty of confidentiality.8. Get involved with the bar
Lawyers should become actively engaged with bar associations. Bar involvement offers important opportunities for remaining current in one's practice fields and building a network for professional support, including referrals. Joining bar committees may provide a chance to be more involved with professional responsibility issues.9. Institute an office professional responsibility "brown bag" series
Law firms should offer internal educational sessions, such as informal brown bag lunch discussions, about recent developments and concerns about professional responsibility issues. These sessions can serve also as a convenient audit of the law firm's operational policies.10. Always consult with a professional responsibility expert
When a member of a certified grievance committee or the statewide discipline counsel's office contacts you about possible misconduct, you are well-advised to consult with lawyers who specialize in lawyer discipline. Early consultation with such specialists may facilitate a fair and efficient resolution of an inquiry and does not contravene the lawyer's ethical obligation to cooperate with the lawyer discipline process.
These tips will help lawyers avoid professional problems. Unfortunately, some lawyers will find themselves enmeshed in the lawyer disciplinary process and subject to a variety of sanctions, including suspension and even disbarment. The gravity of the sanction will be impacted by mitigating and aggravating factors.
Jack Sahl is the Joseph G. Miller Professor of Law and Director of the Joseph G. Miller and William C. Becker Center for Professional Responsibility at The University of Akron School of Law.
1 Jeffrey M. Smith & Ronald E. Mallen, Preventing Legal Malpractice, x (1989).