Tips for avoiding legal malpractice claims

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By Tony Ogden
Dolan Newswires

BOSTON, MA — Being hit with a legal malpractice suit can be any lawyer’s worst nightmare. But staying out of trouble with your clients may be easier than you think.

“Contrary to the expectations of most lawyers and clients, the bulk of claims do not come from a failure to know or apply substantive law,” said Dan Pinnington. Pinnington is the director of practicePRO, the claims prevention initiative of the Lawyers Professional Indemnity Co. in Ontario, Canada.

Most claims “come from failures or breakdowns in lawyer-client communication and relationships.”

Here are some tips Pinnington has for avoiding those breakdowns:

Control client expectations from Day 1

“Clearly and accurately communicate what the possible actions are, the potential outcomes, how long (actions) are going to take and the expected costs,” said Pinnington.

For example, “if you say a client has a 40-80 percent chance of winning, they’re going to hear 80 percent.”

He also suggests setting all deadlines for a day or two after you know you can get the work done.

“Under-promising and over-delivering (i.e. earlier than promised) on work for clients will make them very happy.”

Stress open communication

“Keep open lines of communication,” Pinnington said. “Build a relationship with your client that’s more than one matter deep. That way, if there is a problem, it’s hopefully going to be resolved in a way that’s better for all involved.”

To build strong client relationships, he suggests asking clients for feedback at key milestones and talking to major clients at least once a year.

“Do this off the clock,” he advises.

Avoid fee disputes

“Start out on the right foot with a written retainer,” Pinnington said. “Frequently money disputes lead to allegations of malpractice, so (make) sure the client has a full appreciation of what this is going to cost by putting money on the table up front.”

Lawyers should also “replenish retainer funds before they are exhausted … (because) working on credit greatly increases the likelihood you will not get paid.”

And suing your client for fees “almost guarantees a counter-claim alleging negligence,” he said.

Document (almost) everything

“It’s not practical to document everything on every matter, but important things should be confirmed in writing. In particular, you want to record advice or instructions that involve significant issues or outcomes, and major client instructions or decisions,” Pinnington said.

“You may do hundreds or thousands of a particular type of action over your career, and six months from now, you’re not going to remember the specifics,” he notes. But clients, on the other hand, only do this once or twice, and they remember every detail.