Avoiding Legal Malpractice
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Avoiding Legal Malpractice James P. Kelaher, Esq. Kelaher Law Offices, P.A. Orlando, Florida
The Initial Interview
Ethics Opinion 88-6 allows nonlawyer staff to conduct interview… but…
If at all possible, conduct the initial intake interview yourself
Evaluate the client, and not just the client’s case
Important Questions
Is this their first consultation with an attorney? Were they being represented by another attorney? If so, why are they wanting to meet with you? Clients seeking second opinions should make you inquire why? Are they just wanting to retain an attorney who is willing to tell them
Interview the Client
Trust your “gut” feeling Is there anything about the client that makes you feel nervous? Do you pick up on any “warning signs”? What are their expectations? Do you believe you can satisfy this client? If not, graciously turn down the client If unreasonable, consider declining
Investigate the Client
Get a detailed litigation history from them Have they filed more than one or two lawsuits in the past? If a PI case, ask about all prior accidents, even if they didn’t bring a claim Ask them if they have ever sued a lawyer before Get their SS# and check them out on
Detailed Intake Questionnaire
Spend the time drafting a detailed intake questionnaire – ask the client to complete it before your initial intake interview Some doctors snail-mail or e-mail these questionnaires out to the clients before the initial patient examination – why shouldn’t lawyers? Review their answers before meeting
Initial Client Interview
If you type the initial interview, print two copies and let the client take a copy of the interview with them Ask the client to initial or sign the copy you retain after they have had the chance to review it for accuracy If the client retains you, get them to sign the retainer agreement on the first meeting, copy it and let the client take a copy of the retainer agreement with them Send them a confirmation letter, outlining
No-Brainer Suggestion
Make sure that you do not have any type of legal or personal conflict Explain any personal conflicts If you have a personal conflict, don’t take the case just to earn the fee If the client wants you to still represent them, get a conflict waiver out of them, but remember… Once the client knows of the personal conflict, they will question your representation if results not favorable
Client Declination
If you decline to accept the client’s representation, or if they don’t hire you, send them a declination letter by… Regular Mail AND Certified Mail, R R R AND E-Mail, asking for an acknowledging responsive e-mail
That Lawyer Represented Me!
Declination letter is important to protect you AND to make sure the client’s interests are protected so they can get another lawyer to represent them Whether or not you represent a client is a question of fact as to what the client thinksnot what you think! It’s always a question of fact…don’t plan on getting a S/J Client must have a reasonable factual basis for believing you represent them
Did You Represent Him?
Doesn’t matter that they never paid you Doesn’t matter that there is no contract Doesn’t matter that YOU didn’t think you represented them Does matter that they shared confidential information with you Does matter that they had a reasonable basis to believe you represented them
Document Client Interaction
Technology
Get the clients e-mail address, if possible E-mail – save all e-mails…perhaps in a Client Management Software – save e-mails into the client’s file Save both incoming AND outgoing e-mails – this eliminates the “He Said – She Said” contests It will help you represent the clients better….your memory is NOT like wine….it doesn’t get better with age It will also help you share client communiations with your staff
Maintain Good Client Contact
#1 grievance against lawyers is for failure to maintain contact with clients While encouraging your clients to use e-mail, nothing takes the place of…. Talking for a few minutes with clients when they call will improve the attorney-client relationships, and keep the clients happier Happy clients refer other clients to you, and…
Keep the Clients Informed!
Next time you get a copier, get one with scanning capability – most all new copier have that function for little if any extra cost Scan and e-mail the client all important documentation as you receive it It’s quicker, cheaper, and makes the client feel that they’re “in the loop”
Conflict of Interest?
Outline sets forth Rule 4-1.8 in detail – save the outline, familiarize yourself with it and give it to your staff to read, as well
Rule 4-1.8
Business Transactions with Clients – many “thou shalt nots” – read them all Cannot use information learned from a client to their detriment, unless you’re being sued by that client for malpractice Probate lawyers should know that they should not make themselves or their family beneficiaries of a will or
Rule 4-1.8
Don’t ask client if you can write a book about them – or use them in any other media When client asks to borrow money, the answer you want to give – and should give is… NO! PI lawyers can advance client costs, but cannot loan living expenses to clients
Third Party Compensation
When Allstate, State Farm or some third party or insurance company is paying your bill, get client to acknowledge in writing that you informed them of that fact, but nevertheless… Your ethical duty is to the client, not who is paying your bill Always inform them they have the right to hire their own counsel to
Rule 4-1.8
Don’t try to have client sign an agreement which prospectively limits your liability – leave that up to the doctors!
A lawyer cannot acquire any proprietary interest in a client’s case, other than the usual contingent fee agreement, then you have to give (and explain) the statement of
Scope of Retention
You need to have any representation of any client in writing – remember, no good deed goes unpunished! Always get every representation of every client in writing Written agreement should set forth the attorney’s compensation Does it set forth the attorney’s hourly rate Does it set forth the paralegal’s hourly rate
Does Contract Explain Costs
Surprised clients are rarely happy clients Does the contract set forth what the clients will be charged for: Photocopies Faxes Long
Distance Mileage Postage
Client Retainers
Contract should specify whether any part of retainer is non-refundable, and if so, how much Delicate balance: how much is your retainer Is
it enough to get your representation started Is it too big so you’ll scare clients away Make sure the client knows that your retainer does not cover your entire fee Have your bills include what is left of
Don’t Let Fees Build Up
Do your best to keep their retainers in your trust account current – for liability reasons, too Clients who owe attorneys money are more apt to be unhappy with you…and contemplate suing you as an alternative to paying your bill There’s a reason professional liability insurance companies ask you if you have ever sued a client for a fee on
Fees Owed – Sue or Not Sue?
Whether client is happy or not – and especially if they are unhappy – suing the client for your fee may result in a counter-claim for legal malpractice Suggest your local bar association fee dispute committee as an alternative to filing a lawsuit as a client will more likely accept the committee’s findings
Indefensible Malpractice
Statute of Limitations Don’t wander outside your area of expertise Immediately research SOL if you do Avoid out-of-state representation unless you are licensed in that state Only defense to SOL is having to prove that there was never an underlying case, and the practical, but not legal burden of proof will be on you
Indefensible Malpractice
“Gotcha” Time Deadlines Cruise Line cases – 1 year Sovereign Immunity Cases – notice in 3 years and in Georgia it’s 1 year Medical Malpractice – 2 years from date of discovery but 4 year statute of repose Product Liability – 12 year statute of repose Numerous others – don’t stray outside your area of expertise
Implement Internal Controls
Staff education – send them to seminars, too! Instruct your staff to avoid giving legal advice – no matter how much you trust them Review every document that is filed in court Avoid delegating true legal functions to non-attorney staff
Risk Management Controls
Have more than one person monitor important time deadlines Spend an hour or two a month reviewing all client files with your staff Client database software helps stay on top of cases Client Profiles Prevail
-Pro Doc
Stay in your Comfort Zone
To research some issues is OK Having to research many issues is not If you can’t answer most of the client’s questions during the intake interview, punt! Referring the client to another attorney more knowledgeable and proficient in that particular area of law, you’re probably doing both of you a good service
Rule 4-1.1 Competence “A
lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation.”
Professional Liability Insurance
We have ethical obligations to our clients If you can’t write a check to your client for the amount of damages they may sustain as a result of your negligence, then buy professional liability insurance! Lawyers without malpractice insurance do get sued, and judgments are obtained
What To Buy & Where to Buy It
Do not buy “wicking” or “wasting” policies It’s not necessary to buy large policy limits Make sure your policy has coverage retroactive to an appropriate date Check to make sure it’s an onshore company that will be there when you need it to be there – investigate the
Which Company?
Ask attorneys who defend malpractice carriers to see who they think does a good job Lora Dunlap at Fisher, Rushmer here in Orlando is the most prominent and probably best legal malpractice defense lawyers in town FLMIC, Westport, Great American, CNA (Gilsbar Pro) are among the most reputable
Deductibles?
Get the highest deductible you can afford Realize that in most policies the cost of investigating the case and the defense of the case does apply to your deductible Frequently there is a break for “early reporting” (i.e., $10k deductible, but a $5k deductible for “early reporting”
Report the Claim!
When you get an “on notice” letter from an attorney Forward
it to your insurer immediately Inform the attorney of your insurer promptly
DON’T BE AN OSTRICH!
Why Report the Claim?
If you don’t promptly report the claim, your insurer may deny you coverage Insurers look for excuses to deny coverage Section 627.4137, F.S. requires not just your insurance carrier to notify the claimant as to coverage, it requires YOU to notify the claimant of who insures you Don’t let a lawsuit force you to
Represent Yourself?
Remember the old quote: “An attorney who represents himself has a fool for a client” If you have coverage, promptly turn it over to your carrier Don’t send anything to the plaintiff’s lawyer without putting “Settlement Purposes Only – Confidential” on it Any other response could be
Summary
Be careful in interviewing the client Spell out in writing the scope of your retention and confirm in writing when you’re not representing anyone with whom you’ve met Do your best to keep your client informed and happy – and return their calls Document, document, document Stay within your field of expertise
QUESTIONS & ANSWERS
The Initial Interview
Ethics Opinion 88-6 allows nonlawyer staff to conduct interview… but…
If at all possible, conduct the initial intake interview yourself
Evaluate the client, and not just the client’s case
Important Questions
Is this their first consultation with an attorney? Were they being represented by another attorney? If so, why are they wanting to meet with you? Clients seeking second opinions should make you inquire why? Are they just wanting to retain an attorney who is willing to tell them
Interview the Client
Trust your “gut” feeling Is there anything about the client that makes you feel nervous? Do you pick up on any “warning signs”? What are their expectations? Do you believe you can satisfy this client? If not, graciously turn down the client If unreasonable, consider declining
Investigate the Client
Get a detailed litigation history from them Have they filed more than one or two lawsuits in the past? If a PI case, ask about all prior accidents, even if they didn’t bring a claim Ask them if they have ever sued a lawyer before Get their SS# and check them out on
Detailed Intake Questionnaire
Spend the time drafting a detailed intake questionnaire – ask the client to complete it before your initial intake interview Some doctors snail-mail or e-mail these questionnaires out to the clients before the initial patient examination – why shouldn’t lawyers? Review their answers before meeting
Initial Client Interview
If you type the initial interview, print two copies and let the client take a copy of the interview with them Ask the client to initial or sign the copy you retain after they have had the chance to review it for accuracy If the client retains you, get them to sign the retainer agreement on the first meeting, copy it and let the client take a copy of the retainer agreement with them Send them a confirmation letter, outlining
No-Brainer Suggestion
Make sure that you do not have any type of legal or personal conflict Explain any personal conflicts If you have a personal conflict, don’t take the case just to earn the fee If the client wants you to still represent them, get a conflict waiver out of them, but remember… Once the client knows of the personal conflict, they will question your representation if results not favorable
Client Declination
If you decline to accept the client’s representation, or if they don’t hire you, send them a declination letter by… Regular Mail AND Certified Mail, R R R AND E-Mail, asking for an acknowledging responsive e-mail
That Lawyer Represented Me!
Declination letter is important to protect you AND to make sure the client’s interests are protected so they can get another lawyer to represent them Whether or not you represent a client is a question of fact as to what the client thinksnot what you think! It’s always a question of fact…don’t plan on getting a S/J Client must have a reasonable factual basis for believing you represent them
Did You Represent Him?
Doesn’t matter that they never paid you Doesn’t matter that there is no contract Doesn’t matter that YOU didn’t think you represented them Does matter that they shared confidential information with you Does matter that they had a reasonable basis to believe you represented them
Document Client Interaction
Technology
Get the clients e-mail address, if possible E-mail – save all e-mails…perhaps in a Client Management Software – save e-mails into the client’s file Save both incoming AND outgoing e-mails – this eliminates the “He Said – She Said” contests It will help you represent the clients better….your memory is NOT like wine….it doesn’t get better with age It will also help you share client communiations with your staff
Maintain Good Client Contact
#1 grievance against lawyers is for failure to maintain contact with clients While encouraging your clients to use e-mail, nothing takes the place of…. Talking for a few minutes with clients when they call will improve the attorney-client relationships, and keep the clients happier Happy clients refer other clients to you, and…
Keep the Clients Informed!
Next time you get a copier, get one with scanning capability – most all new copier have that function for little if any extra cost Scan and e-mail the client all important documentation as you receive it It’s quicker, cheaper, and makes the client feel that they’re “in the loop”
Conflict of Interest?
Outline sets forth Rule 4-1.8 in detail – save the outline, familiarize yourself with it and give it to your staff to read, as well
Rule 4-1.8
Business Transactions with Clients – many “thou shalt nots” – read them all Cannot use information learned from a client to their detriment, unless you’re being sued by that client for malpractice Probate lawyers should know that they should not make themselves or their family beneficiaries of a will or
Rule 4-1.8
Don’t ask client if you can write a book about them – or use them in any other media When client asks to borrow money, the answer you want to give – and should give is… NO! PI lawyers can advance client costs, but cannot loan living expenses to clients
Third Party Compensation
When Allstate, State Farm or some third party or insurance company is paying your bill, get client to acknowledge in writing that you informed them of that fact, but nevertheless… Your ethical duty is to the client, not who is paying your bill Always inform them they have the right to hire their own counsel to
Rule 4-1.8
Don’t try to have client sign an agreement which prospectively limits your liability – leave that up to the doctors!
A lawyer cannot acquire any proprietary interest in a client’s case, other than the usual contingent fee agreement, then you have to give (and explain) the statement of
Scope of Retention
You need to have any representation of any client in writing – remember, no good deed goes unpunished! Always get every representation of every client in writing Written agreement should set forth the attorney’s compensation Does it set forth the attorney’s hourly rate Does it set forth the paralegal’s hourly rate
Does Contract Explain Costs
Surprised clients are rarely happy clients Does the contract set forth what the clients will be charged for: Photocopies Faxes Long
Distance Mileage Postage
Client Retainers
Contract should specify whether any part of retainer is non-refundable, and if so, how much Delicate balance: how much is your retainer Is
it enough to get your representation started Is it too big so you’ll scare clients away Make sure the client knows that your retainer does not cover your entire fee Have your bills include what is left of
Don’t Let Fees Build Up
Do your best to keep their retainers in your trust account current – for liability reasons, too Clients who owe attorneys money are more apt to be unhappy with you…and contemplate suing you as an alternative to paying your bill There’s a reason professional liability insurance companies ask you if you have ever sued a client for a fee on
Fees Owed – Sue or Not Sue?
Whether client is happy or not – and especially if they are unhappy – suing the client for your fee may result in a counter-claim for legal malpractice Suggest your local bar association fee dispute committee as an alternative to filing a lawsuit as a client will more likely accept the committee’s findings
Indefensible Malpractice
Statute of Limitations Don’t wander outside your area of expertise Immediately research SOL if you do Avoid out-of-state representation unless you are licensed in that state Only defense to SOL is having to prove that there was never an underlying case, and the practical, but not legal burden of proof will be on you
Indefensible Malpractice
“Gotcha” Time Deadlines Cruise Line cases – 1 year Sovereign Immunity Cases – notice in 3 years and in Georgia it’s 1 year Medical Malpractice – 2 years from date of discovery but 4 year statute of repose Product Liability – 12 year statute of repose Numerous others – don’t stray outside your area of expertise
Implement Internal Controls
Staff education – send them to seminars, too! Instruct your staff to avoid giving legal advice – no matter how much you trust them Review every document that is filed in court Avoid delegating true legal functions to non-attorney staff
Risk Management Controls
Have more than one person monitor important time deadlines Spend an hour or two a month reviewing all client files with your staff Client database software helps stay on top of cases Client Profiles Prevail
-Pro Doc
Stay in your Comfort Zone
To research some issues is OK Having to research many issues is not If you can’t answer most of the client’s questions during the intake interview, punt! Referring the client to another attorney more knowledgeable and proficient in that particular area of law, you’re probably doing both of you a good service
Rule 4-1.1 Competence “A
lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation.”
Professional Liability Insurance
We have ethical obligations to our clients If you can’t write a check to your client for the amount of damages they may sustain as a result of your negligence, then buy professional liability insurance! Lawyers without malpractice insurance do get sued, and judgments are obtained
What To Buy & Where to Buy It
Do not buy “wicking” or “wasting” policies It’s not necessary to buy large policy limits Make sure your policy has coverage retroactive to an appropriate date Check to make sure it’s an onshore company that will be there when you need it to be there – investigate the
Which Company?
Ask attorneys who defend malpractice carriers to see who they think does a good job Lora Dunlap at Fisher, Rushmer here in Orlando is the most prominent and probably best legal malpractice defense lawyers in town FLMIC, Westport, Great American, CNA (Gilsbar Pro) are among the most reputable
Deductibles?
Get the highest deductible you can afford Realize that in most policies the cost of investigating the case and the defense of the case does apply to your deductible Frequently there is a break for “early reporting” (i.e., $10k deductible, but a $5k deductible for “early reporting”
Report the Claim!
When you get an “on notice” letter from an attorney Forward
it to your insurer immediately Inform the attorney of your insurer promptly
DON’T BE AN OSTRICH!
Why Report the Claim?
If you don’t promptly report the claim, your insurer may deny you coverage Insurers look for excuses to deny coverage Section 627.4137, F.S. requires not just your insurance carrier to notify the claimant as to coverage, it requires YOU to notify the claimant of who insures you Don’t let a lawsuit force you to
Represent Yourself?
Remember the old quote: “An attorney who represents himself has a fool for a client” If you have coverage, promptly turn it over to your carrier Don’t send anything to the plaintiff’s lawyer without putting “Settlement Purposes Only – Confidential” on it Any other response could be
Summary
Be careful in interviewing the client Spell out in writing the scope of your retention and confirm in writing when you’re not representing anyone with whom you’ve met Do your best to keep your client informed and happy – and return their calls Document, document, document Stay within your field of expertise
QUESTIONS & ANSWERS
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