WARNING AND DISCLAIMER: The information herein was prepared by The Bar Plan Mutual Insurance Company
for general information purposes, and should not be construed as legal advice or legal opinion with regard to any
specific circumstance or set of facts. The reader must conduct independent research and analysis to determine all
possible and appropriate legal and ethical issues that might apply to a specific situation and the best way to address
these issues in the jurisdiction where the reader is located. Professional Conduct Rules vary from state-to-state.
Depending on the location of the reader, the information in this article may are may not be applicable.
Five Practice Management Myths that Lead to Malpractice
Christian A. Stiegemeyer
Director of Risk Management
The Bar Plan Mutual Insurance Company
We are all familiar with the phrase “urban myths.” These legends are passed from teller to
listener, often as warnings, or cautionary tales. The stories provide comfort, in that by describing
some tragedy befalling a “friend-of-a-friend” the listener can feel assured he is alright because he
doesn't engage in similar behavior that led to the problems described in the yarn. The problem
with these myths is that they are untrue, and provide only the illusion that we are safe if we
forebear from one activity, when in reality there may be countless risks in our daily routine. That
is, the myths themselves can blind us to the real risks all around us.
As a Risk Manager, I’ve come to realize that lawyers are similarly susceptible to comforting, yet
inaccurate, myths of related legal malpractice prevention.
Myth #1 – I’m an experienced attorney and never had a claim, so I must be doing something
right.
Reality – In the changed claims climate we are currently in, prior experience is increasingly
becoming a less reliable indicator of an attorney’s future potential for committing, or not
committing, malpractice. For example, last year The Bar Plan paid an indemnity averaging
slightly more than $431,000 on ten separate insureds with a combined 67 years of prior claimsfree history. Quite simply, The Bar Plan has never in its history seen anything remotely like the
claims activity we are currently experiencing. So, when old rules and trends seem no longer to
apply, and until new rules and trends emerge, extra care and attention needs to be paid to your
firm’s risk avoidance procedures.
Myth #2 – Our system requires all dates be docketed and we’ve never missed a statute of
limitations or deadline, so our docket control and calendar systems are working.
Reality – A common perception about malpractice related to missing dates and deadlines is that it
occurs in representations that somehow miss getting into the firm’s calendaring system and then
are forgotten about. While The Bar Plan certainly does see this type of claim, the more common
scenario is for a deadline to be missed in a case the lawyer is actively working, and even
reviewing regularly. This occurs ordinarily because the firm’s processes fail to provide
confirmation at the Source Documentation level that a critical date has been entered into the
calendaring system.
This problem is illustrated by considering a typical system for handling incoming mail. A
common process is for a staff person to open the mail, sort time-sensitive notices, enter the dates
on the firm’s calendar and then forward the mail to the responsible attorney for review. Often
times, when the mail reaches the attorney, there is no confirmation on the notice that the date has
been entered. Consequently, if the staff person responsible for entering the date misses one, there
is nothing on the face of the notice to alert the attorney to a problem.
This potential problem can be cured simply by requiring the staff person to note on the face of the
notice, by initialing and highlighting the date in the notice perhaps, that the task of entering the
date in the calendar has been accomplished.
Myth #3 – Malpractice claims are really only a problem for Plaintiffs’ Personal Injury attorneys.
Reality – While it is true that plaintiff’s personal injury area of practice is responsible for the
greatest percentage of reported claims, there has been a rise in claims risks for lawyers in all areas
of the law. Last year, for example, The Bar Plan paid indemnity of more than $4,500,000 on a
claim brought by the insurance company that hired the attorney to defend the company’s insured.
Historically, “Insurance Defense” was considered the classic “safe” practice area. And while the
severity of the claim described above is atypical, claims, and claims severity especially, made in
this practice area, and all other areas of law, are clearly on the rise.
Myth #4 – I’ve trained my staff on our firm’s procedures and they know what to do. They must
be following our procedures because we haven’t had any problems.
Reality – Regarding the myth that things at your firm are okay because you haven’t had a
problem yet, reread the Reality of Myth #1, above.
Regarding your staff, unless they are monitored regularly, there is no guarantee they are
executing the procedures the firm has implemented. Even the best employees can be tempted to
cut corners in their assigned tasks. Unfortunately, the failure of a single employee to accomplish
an assigned task can have a devastating effect on a representation, and result in a claim.
A related problem is that of an employee who is not told when a representation is outside the
protective guardrails of the firm’s processes. For example, The Bar Plan had a claim that on the
surface appeared to be a garden variety missed deadline problem. It arose when the lawyer failed
to appear for a court hearing on a matter that the lawyer had been actively working for more than
a year. Upon investigation of the claim we learned that the insured’s regular procedure when he
went to court was to take with him a printout of the firm’s docket. If a case was continued, the
new date would be noted on the docket, and upon returning to the office, the docket would be
given to a secretary for inputting the new date into the docket control system.
The problem arose when the insured went to court one day without the docket printout. When the
case was passed for thirty days, the lawyer simply wrote the new date on the face of the file.
Upon returning to the office, the insured handed the secretary the file but said nothing about
where to find the new date, having been distracted by a stack of pink phone message slips. He
then went to his office to start returning phone calls. The secretary, not seeing a docket printout,
and not knowing to look for the date on the file, followed standard procedure, which was to return
all files to the filing cabinets if they were not being worked. Thirty days later, an adverse
judgment was entered against the client because the lawyer failed to appear, not being alerted to
the hearing because the new date never was entered.
When a matter strays beyond the border of the firm’s standard procedures, do not let it go until it
is shepherded back into the fold.
Myth #5 – Each of our lawyers maintains his own docket of important dates and deadlines on the
firm’s centralized computer calendar that all the other lawyers can review (but we never do) if
there is a problem.
Reality – For a calendar system to be “centralized” there must be a single source that contains
ALL dates and deadlines of ALL the attorneys at the firm, AND there must be a regular review of
this central calendar by a designated lawyer to ensure timely compliance and response to
docketed events is occurring. Failing to have a single attorney responsible for oversight of the
firm’s calendar leads to what is a common malpractice problem, characterized as “Failure to
Respond to Calendar.” That is, the firm’s processes are working fine, the information is available
to the attorneys to warn them of upcoming events, but for reasons of lack of attention, or time, a
deadline is not responded to timely. In such situations, when The Bar Plan inquires about what
caused the malpractice error, attorneys invariably respond with, “We just blew that one.”
The solution to not “blowing one” is to assign a lawyer with the responsibility of monitoring the
firm’s calendar, not just from the perspective of whether dates and deadlines are being entered in
an accurate and timely manner, but also to insure that those dates and deadlines are responded to
by the attorney responsible for the representation.