Some of the most glaring risk prevention tools are relatively simple to employ, and, in their absence, can create headaches for lawyers.
There are significant amounts of data regarding legal malpractice claims against lawyers, including the frequency, type of law, size of firm or even amounts of damages sought. This information can be quite helpful to lawyers and law firms in identifying areas of potential risk and adopting change.
Some of the most glaring risk prevention tools are relatively simple to employ, and, in their absence, can create headaches for lawyers. Below are ways attorneys and firms can improve any practice by breaking five bad habits.
Update or Start Using a Docketing System
Time is often the most precious commodity for a lawyer. With court deadlines and client demands, attorneys often find themselves balancing many deadlines at a single time. However, when it comes to docketing important deadlines, attorneys might fall short in establishing a foolproof system to prevent time-related errors. Missing a deadline or failing to attend to client interests or demands are easy targets for malpractice plaintiffs, even where no injury or damage results.
The rules of professional conduct attempt to ensure that attorneys safeguard the interests of their clients and not neglect matters entrusted to them. Yet even the most careful or experienced attorneys may inadvertently fail to comply with a deadline, particularly if a systematic approach is not applied. By adopting a concrete system for docketing, attorneys are much more likely to prevent time-related errors. It also means that attorneys do not have to keep deadlines only in their memories.
Docketing mistakes often result from attorneys relying on their email system to manage every aspect of their professional lives. In that way, time management in the electronic communication world, requiring the timely response to deadlines, is an old problem but with a new and ever-expanding dimension.
To avoid such errors, attorneys can employ and then re-evaluate their calendar or docket control system. Effective docket control systems should help, not hinder, the practice of law. If a docket control system is not helping an attorney track and manage deadlines, there may be a better system out there. A docketing system can be user-friendly, accurate and reliable.
However, it is critical that attorneys actually use a docketing system, once in place. If documents or deadlines are not being fed to the docketing system, there is still a significant risk of missing a deadline—and receiving a claim.
Effectively Manage the Email Inbox
Another attorney bad habit is the use of an email inbox as a task list. If an email inbox is unlimited in size (or nearly unlimited), a busy attorney can inadvertently miss a deadline or an important communication because of delays in processing or reading emails.
Leaving emails unattended to in an inbox, with the goal of “getting to them later,” can create unnecessary risk.
Handling and foldering messages appropriately can be of great assistance in this regard. Some firms will limit the number of emails that can be kept in an inbox, thereby encouraging lawyers to process emails in a more timely fashion.
Ensure That Insurance Coverage Is Up to Date
Legal malpractice insurance is a necessity of the modern law practice. Although few states actually require an attorney to carry legal malpractice insurance (or to disclose to the bar or their clients if they do not carry insurance), legal malpractice insurance is a benefit to all attorneys, even those who do not anticipate receiving claims.
Attorneys can be candid about what they need for insurance. Being honest in a self-assessment about what practice areas the attorney engages in or what additional terms would be of benefit to the attorney is a plus.
It is helpful to review an existing professional liability policy before a claim is made to identify any potential gaps and to fully consider whether the policy provides everything the attorney needs. Renewals should be fully reviewed and analyzed to make sure that there are no unnecessary holes in the coverage.
Use Security for Mobile Devices
The use of modern technology creates challenges for lawyers, who have a professional duty to maintain client confidences and secrets. Every attorney is essentially carrying a full computer (and access to their firm’s files) through the smartphone in their pocket. Thus, attorneys can break any bad habits associated with their smartphones.
To ensure that secrets are kept safe while using mobile devices, most law firms require the use of a passcode on the physical phone. In that way, if a phone is left on an airplane or in the back of a taxi, the finder is not automatically permitted into the firm’s files and network.
Some firms use programs that allow them to “remote wipe” data from their devices in the event the devices are lost or stolen. Others use programs that ensure smartphone data is encrypted or employ features such as GPS tracking and secure file sharing. What works best may vary by firm or by client.
Use Engagement Letters
Engagement letters are important because they set out the parameters of the attorney-client relationship. It is important to be clear in engagement letters and, where appropriate, update them or prepare new ones for additional matters. Thus, attorneys who “never” send out engagement letters can try to break that bad habit.
The consistent use of engagement letters can help reduce malpractice claims or limit their scope. For example, the engagement letter can clearly identify the client, the scope of representation, the duration of the representation and the fees to be charged for the firm’s services. Having these terms in writing may prove helpful down the line.
When individual attorneys use a general engagement letter, such an approach can suggest that the attorney undertakes to advise the client on any possible legal issue that arises, far beyond the actual intended scope of the representation. This can create additional unnecessary risk.
There are a number of “bad habits” that attorneys employ into their habits. However, by taking stock and identifying areas for improvement, attorneys can reduce the likelihood or severity of a claim.