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AVOIDING MALPRACTICE CLAIMS AND GRIEVANCE COMPLAINTS By Thomas D. Murphy, Esquire, Murphy & Mood, P.C. 1. Communication Lack of communication is at the heart of a high percentage of malpractice claims and complaints to the Attorney Grievance Commission. Whether by letter, e?mail or phone call, keep your client informed of significant developments in his or her matter and provide regular status reports. Send copies of correspondence and pleadings. Give the client both the good news and the bad news. Return phone calls and respond to e?mails. While not returning phone calls might not be a basis for a claim or a complaint, all claims begin with an unhappy client. Allowing a client to feel neglected, uninformed, ignored or frustrated is a claim waiting to happen. 2. Calendaring Errors in calendaring and simply missing deadlines are a cause of a significant number of malpractice claims. Maintain a calendar and a back up. Enter deadline dates as you receive them, and consult your calendar frequently. Review your files periodically to refresh yourself on the status of each open matter and remind yourself of upcoming deadlines. Use a file tickler system to remind you to retrieve files and review them in anticipation of deadlines and to review the work that needs to be done on the file. 3. Client selection You are not required to take every case. Consider whether you have the expertise and experience to handle a matter in a new area. Take on only matters that you are competent to handle. Practice only where you are licensed. Consider whether the client will be able to afford your services. If the case is a contingency fee case, consider whether you have the resources to take on the case. Be sure you have adequate time to investigate and pursue the matter in a timely manner. Consider whether the client appears to have unrealistic expectations or an axe to grind. Be careful of the client who has hired or consulted other attorneys before coming to you. 4. Fee agreements Although the Maryland Rules of Professional Conduct require that only contingency fee agreements be written, it is recommended that all engagements be documented in writing. Be certain that all the fee terms, including responsibility for costs, are spelled out. Describe the nature and scope of your representation clearly. If the representation is to be limited, be sure to say so. Consider whether your agreement should require arbitration of fee disputes. If the fee is to be shared with another lawyer, be sure to comply with Rule 1.5(e).
Establish a
system to screen for conflicts. Be wary of representing multiple
individuals, such as a divorcing couple, an estate and its beneficiaries,
a buyer and seller or multiple business partners or shareholders.
If you are going to represent multiple parties, make full disclosure
and obtain written consent. If you are not representing a particular
party to a transaction, provide a clear statement in writing. Avoid
financial interests in a client's business. If you decide to decline a representation, confirm this in writing, and save your letter. If applicable, state when the statute of limitations will run on the claim and explain what this means. Suggest other attorneys or a lawyer referral service. 7 . Obtain client consent and follow client's instructions Be sure to document important decisions and actions. Document your advice, and document your client's decision not to follow your advice. 8. File Maintenance Maintain an efficient and up to date filing system. Establish a rational file retention/ destruction policy. 9. Collection of fees Send bills on a regular basis and provide detailed billing statements, describing the work performed and itemizing the costs. Contact your client in advance of sending an unexpectedly big bill. Follow up promptly on accounts that are in arrears, and don't let accounts receivable get out of hand. Be extremely reluctant to file suit for fees. Consider fee arbitration or mediation as an alternative. Suits for fees should be pursued, if ever, only if the fee agreement is in writing, a good result was obtained and there is no conceivable ground for complaint by the client. Before filing suit, have the matter reviewed by a colleague. Remember that the response to a suit for fees very often is a counterclaim for legal malpractice. The Rules are the starting point, and frequently the ending point, for the vast majority of ethical issues that arise. 11. Consult with others Don't be reluctant to consult with a colleague or friend or to call a bar association ethics hotline. Many insurance companies offer risk management services and programs. 12. Settlement Agreements Although settlement advice is a matter of judgment, the Court of Appeals has made clear that settlement agreements can be the subject of malpractice claims, just like any other professional service. Be sure that your settlement advice is informed. Perform adequate investigation, research and discovery before advising a client on the merits of a settlement offer. Keep the client informed of all settlement negotiations, and advise the client of the advantages and disadvantages of accepting a particular settlement agreement. Document your settlement advice and the reasons for it. 13. Local counsel If you have a matter outside the state where you are licensed, hire competent local counsel. If you are engaged as local counsel, remember that you are just as responsible for the matter as the primary counsel. 14. Office sharing arrangements Lawyers who share office space have been sued on the theory that they were, from a client's perspective, "apparent partners". Practitioners who share space should take care to identify themselves separately and have separate printed materials. Take care not to convey the impression that you have a de facto partnership with other office sharers. 15. Prepare for the possibility of a claim Buy malpractice
insurance. Some policies also provide for a defense against grievance
complaints. Do not underestimate the coverage you need. If you receive
notice of a potential claim or have reason to believe a claim might
be made, notify your carrier at once. Do not discuss the matter
with your adversary. If your client requests his file, keep a complete
copy, well organized, for yourself. |
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