Five Ways to Avoid a Malpractice Lawsuit

Avoid malpractice suits—and make your clients happy—with these five techniques.

There is a reason many lawyers carry malpractice coverage. Even a single groundless claim can run a firm tens of thousands of dollars in defense costs. This is particularly problematic for small firms and solo practitioners, who are the most likely to risk operating without malpractice coverage and also might not have the financial resources to field this kind of expense.

Broadly speaking, legal malpractice is said to have occurred when a lawyer makes a mistake (or willfully shirks responsibilities), causing damage to their clients. Like physicians, accountants, and engineers, lawyers are held to high standards of ethical and professional conduct. 

In most cases, malpractice suits don’t arise from a lawyer intentionally neglecting their duties. Instead, they are the results of misunderstandings or an accident. This doesn’t make them any less injurious to a firm’s finances and reputation.

Here is how to avoid some of the most common causes of malpractice suits.  

1. Practice What You Know

Most lawyers specialize in one or two areas, but it can be tempting to advise a long-time client on something outside of your area of expertise. After all, you know more about the law than your client does, right?

Although this might be true, you can violate your professional responsibilities if you unintentionally give your clients bad advice by working outside of your areas of expertise. For example, if you mainly practice family law but you advise a client on bankruptcy proceedings, you expose yourself to risk. If you give bad advice that gets your client into trouble, you could be held liable. To avoid this, refer clients out when they seek advice that you aren’t qualified to give, or consult an expert yourself before you pass anything along. 

2. Change With the Times

If you’ve been in practice for 30 years, things look pretty different now than they did when you were starting out—and one of the most significant changes is the role the internet and technology play in business and law firm operations.

For example, the rules and regulations that govern e-discovery are specific to the discovery mode. Additionally, if a client uses electronic or cloud-based storage solutions in their business, you need to be able to advise them on their legal responsibilities as they pertain to handling client data in an online environment. This requires you to be familiar with the laws as they change to accommodate new technologies. 

The same applies to you – you need to be knowledgeable about how your client’s information is being stored and know that the vendors you’re utilizing are keeping information secure. 

3. Take Responsibility 

As a lawyer, you are ultimately responsible for ensuring that the operation of your practice supports the best outcomes for your clients. This means that if an office manager, paralegal, or even an intern makes a mistake that harms your client, you could find yourself facing a legal malpractice suit. Yikes! As a case manager, you need to take responsibility for coaching and checking in with your staff and put in place systems and procedures to guard against staff error.

4. Set Expectations

One common cause of malpractice suits is failure to communicate clearly with clients and effectively set expectations. Think about it: if a client thinks that you have guaranteed a positive outcome for a case and they don’t end up with one, that client may think that you made a mistake, and you might find yourself in court for the wrong reasons. Even if these claims don’t have validity, they can still be time-consuming and expensive.

This can happen if you pass along communications to junior staff, who may be imprecise with their words. Make sure that you are thoughtful, transparent, and realistic in your communications with clients to avoid getting into trouble. 

5. Own Your Mistakes

You know the saying: it’s not the crime, it’s the cover-up.

Everybody makes mistakes. And even if you put all of your efforts into not making a mistake, it’s still going to happen from time to time. 

As long as you have adequate systems in place to minimize consequences, this isn’t a huge problem for your firm—the issue is when firms try to conceal their mistakes. If a client catches you in a cover-up, they have every reason to stop trusting you—and trust is a critical part of a successful client-lawyer relationship. A client who wonders what else you are hiding may feel an incentive to take you to court or report you to the ethics committee. 

Good Practice is Good Practice

It’s worth noting that the behaviors that guard against malpractice suits are a good idea regardless of whether or not you are actually at risk of being sued. 

Disgruntled clients are never good—even if you don’t end up in court, you aren’t doing your law firm’s reputation any good if you allow your clients to feel like they haven’t received good legal services. 

These habits help ensure that you provide your clients with top-quality services—and that they know it, too.


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