Tips to Avoid Malpractice
Many malpractice claims and bar complaints can be avoided by recognizing those practice areas and tasks that lead to claims and by establishing practices and procedures to avoid them. First, it is important to recognize that certain practice areas are much more likely to lead to malpractice claims or bar complaints. The following practice areas account for eighty-one percent (81 %) of malpractice claims:
- Plaintiff's Personal Injury - 22%
- Real Estate - 14%
- Business Transaction and Commercial - 11%
- Family Law - 9%
- Corporate Business - 9%
- Collection and Bankruptcy - 8%
- Estate - 8%
See American Bar Association, Standing Committee on Lawyers Professional Liability, Legal Malpractice Claims of the 1990s (1996). Recognize that if your practice involves one of these areas, the chance for a claim against you is greater.
Second, certain tasks are more likely to result in a claim. Almost thirty percent (30%) of claims concern the commencement of a matter. Id. Many of these claims involve missed deadlines. Implementing a case management or docket control system can help prevent missed deadlines. Purchasing a computer case management system, which includes a calendaring function based on local court rules, can be especially helpful. A system of this type automatically calendars important case deadlines with the entry of only one or a few key dates. However, always remember that a system, no matter how advanced, is only as useful as the accuracy of the information put into the system. You must insure that all of the relevant information is promptly and routinely entered into the system. It is also important to enter all matters, not just those in litigation.
Many errors also occur because of confusion over the acceptance or rejection of a case. Whenever someone consults you about a matter, always notify that person of the acceptance or rejection of your representation in writing. Conflicts of interest also occur at this time. Always perform a conflict check before accepting representation. Many billing programs allow you to accomplish this task easily. In larger firms, firm-wide e-mails concerning potential new representation can prevent conflicts of interest where two different attorneys within the firm accept representation for two different parties in a dispute.
Over twenty-percent (20%) of claims concern the preparation, filing and transmittal of documents. Id. Obviously, it is important to be careful when filing documents. Always make sure to have proof of a file stamped copy prior to any deadline. Even written assurance by a clerk that the document has been filed is insufficient to prove that a document has been filed. H.R. Lee Investment Corp. v. J.F. Groover, 138 Ga. App. 231(1976).
Ten percent (10%) of claims concern advice. Obviously, providing correct and complete advice is important. It also is important to provide advice and information to clients on a regular basis. Promptly return all phone calls. Promptly respond to any inquiries as to the status of a client's case. Communicate all important information to a client in writing. Consider obtaining the client's agreement before proceeding in an important area of a matter.
Always act professionally. Familiarize yourself with the Georgia Rules of Professional Conduct and the Lawyers Creed and Aspirational Statement of Professionalism. Both can be found at the Georgia Bar Association's web site: www.gabar.org. Regularly attend continuing legal education.
Finally, if a claim is brought against you, take it seriously. If a bar complaint is filed, respond promptly and thoroughly. If you have a fee dispute with your client, seriously consider the consequences of filing a suit. Many times a collection suit leads to a counterclaim for legal malpractice. Instead, consider utilizing the State Bar of Georgia's fee arbitration program.
In conclusion, being aware of common areas where malpractice can occur and taking steps to prevent those actions can help reduce the chances of committing malpractice.
Source: Lawyers Liability Update, Georgia Lawyers Insurance Company
Richard G. Tisinger, Jr. is a partner at Tisinger Vance. He may be contacted at (770) 214-5112, or you can e-mail him at rtisingerjr@tisingervance.com