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Expect 3 malpractice suits

“[We] attorneys all like to talk to our clients, but we need to listen as well because it’s not our case that is being decided, it’s theirs.”

Brian C. Anderson, Claims Counsel, WILMIC

Legal ineptitude is an endless canvas for television and film, from attorney Lionel Hutz in “The Simpsons” to Jim Carrey’s Fletcher Reede in “Liar, Liar.”

Misrepresentation can be funny fodder for audiences, but the reality is that consequences can be severe when attorneys neglect, deceive or overwhelm their clients, especially in solo and small practices.

A quartet of legal minds discussed the topic at the American Bar Association’s 2006 National Solo and Small Firm Conference and offered their perspectives on how practitioners can reduce the risk of poor practice pitfalls.

Attorney’s Checklist

Brian C. Anderson, claims counsel at Wisconsin Lawyers Mutual Insurance Co. in Madison outlined 10 ways small firms commit malpractice and ways to avoid them.

“This is not a top 10 that you want to associate yourself with, that’s for sure,” said Anderson, who noted that the average attorney will face three malpractice suits during his or her career.

Several problem areas included failing to engage in strong communication with clients, inattention to case details and im-proper planning procedures. However, attorneys can take steps to head off those potential problems.

“It starts with client selection in that attorneys, especially those in family law and personal injury, need to use judgment in selecting cases,” said Anderson.

A 2005 ABA study revealed that a combined 36 percent of all claims are made within either plaintiff personal injury or real estate. Anderson noted that while personal injury cases are typically the most expensive to resolve, real estate claims tend to be the least costly. According to the study, family law claims account for 10 percent of the total.

Outlining clear expectations and setting up specific protocol with clients was recommended for alleviating some unnecessary hassle, as well as diagramming case cost.

“An attorney needs to anticipate time and fees,” said Anderson. “It’s a work in progress, but there are provisions that can be made.”

Ten ways to avoid Malpractice Claims

Brian C. Anderson, claims counsel for WILMIC, offers his top 10 list reduce potential problems and avoid malpractice claims.

1. Proper client section.
2. Good intake procedures.
3. Clear expectations.
4. Communication.
5. Don’t assume.
6. Know and properly apply law.
7. Timely attention to client matters.
8. Good administrative support.
9. Proper time keeping/time recording and billing.
10. Maintain clear long-term view.

A supportive and competent staff is also a necessity in small practices because of the workload and potential liabilities. Anderson warned against assessing blame to staff because ultimately, the blame will fall on the attorney handling the case.

Perhaps most the most crucial element is one of the most natural for attorneys — talking.

“Even though they have met with and talked to their clients, attorneys shouldn’t presume clients always know exactly what is going on,” noted attorney Ross Kodner, president and CEO of Milwaukee-based Microlaw. “Even if as an attorney, you know what you are talking about, the client may not.”

Anderson also noted than along with informing clients, attorneys can also be informed by them as well.

“[We] attorneys all like to talk to our clients, but we need to listen as well because it’s not our case that is being decided, it’s theirs,” said Anderson. “Ultimately, the client has the decision-making power, the attorney simply serves as an advisor.”

Small Start, Big Trouble?

While the majority of the mistakes and precautions were pitched to established firms, the risk levels may be higher for recent law school graduates who directly venture into solo or small practices.

“I’ve spoken at Marquette and Madison and was surprised at the number of students who said they planned on starting out in a solo or small firm situation,” said Kodner. “My question to them was, ‘Why would you want to subject yourselves to that right away? Why not go somewhere where you can learn from someone else first?’”

Katja Kunzke, president and CEO of WILMIC admitted that young attorneys on their own may find it tough to manage a business as well as build a legal reputation.

“Most lawyers out of school don’t have a business degree and the last thing you want to do is jeopardize your career by showing up unprepared for a case,” said Kunzke.

From an insurance standpoint, Kunzke did not believe that recent graduates who initially pursued solo or small practice work were necessarily at higher risk for potential malpractice suits.

“It’s just different, in that new lawyers are more likely to have a claim filed, but at a lower risk of it being expensive,” said Kunzke. “I actually think new lawyers are more prepared with things like safeguards and checklists than those who have been practicing for 10 years and think they know everything.”

Kunzke noted that her agency offers reduced rates during the first five years of practice because of the limited risk timeframe.

“If an attorney has a claim filed against them two days into their career, there is only two days to look at,” said Kunzke. “If an attorney has a claim filed 10 years after he started, any of those previous years can be examined.”

Product of Environment

Despite Kodner’s surprise at the number of graduates going out on their own, career service officials at both Marquette and the University of Wisconsin say the number of graduates who begin in solo practice is small.

“I think there has been a greater interest, but the numbers don’t necessarily reflect that right now,” said, Marquette Law School Assistant Dean for Career Planning Paul D. Katzman.

Of the 2005 Marquette Law School graduates who were employed, only 3.2 percent attempted solo practices.

Jane Heymann, Assistant Dean for Career Services at University of Wisconsin Law School estimated that 10 or fewer 2005 graduates ventured into solo practice.

“Most graduates want to go to a firm of three, six or 12 people to gain some experience,” said Heymann. “Even those who open solo firms might later attach themselves to another attorney in a couple years.”

Both assistant deans admitted that while there are some students who explicitly want to open their own practice after graduation, many do it out of necessity. Economic factors along with job availability tend to impact a graduate’s options.

“I think a lot of it is a function of the economy,” said Katzman. “Prior to 2005, the numbers were up for graduates starting solo practices because the economy was slow.”

In both 2003 and 2004, 6.2 percent of Marquette Law School graduates went solo, compared to only 1.9 percent in 2002.

A lagging economy translates into a slowdown in hiring, especially among bigger firms and new attorneys are forced to explore other avenues to generate income.

“If the larger firms aren’t hiring, graduates certainly don’t want to go back to delivering pizzas, so some decide to go it on their own,” said Kunzke.

Both law schools offer classes or programs catered toward students who might aspire to start their own practice and the Wisconsin Bar Association also has resource materials available.

“I think anyone planning on going solo would be silly not to research what it takes, because it might save a lot of headaches down the road,” said Heymann.

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