Ch. 10 Preventing Legal
Malpractice
Finalé!
Overview
• Proactive: “an ounce of prevention is worth a
pound of cure”
• Risk management/loss prevention
– Sound ethical infrastructure
– Australia: compliance through education, selfaudit
– U.K.: outcome based regulation
– U.S., Terry’s “modest proposal” for regulators to
implement these models through RPC 5.1
A. Law Practice Risk Management
•
•
•
•
Avoidance
Prevention
Loss reduction & repair (claims repair/mitigate)
Resources
– Jim Calloway, OBA Law Practice Management
– Carriers, informal regulation through applications,
rate-setting, sometimes continuing education or
newsletters, informal consultation, claims repair
What is the OBA Management Assistance
Program? Okbar.org
The OBA-MAP is a state-bar sponsored practice
management advisor. . . . The OBA Management
Assistance Program was created in 1997 to help
Oklahoma lawyers better organize and operate their
practices. . . . There was also a growing realization in
many circles that many bar complaints filed against
lawyers were not the result of malfeasance or
incompetence in the law, but were the result of poor
law office management practices. The use of law office
technology was also rapidly changing, reshaping the
processes of the traditional law office.
What is Practice Management Assistance ?
Several other state bars, law societies or malpractice
carriers sponsor PMA programs. Most existing PMA
programs share these common objectives:
• Assisting lawyers in improving efficiency and
effectiveness in the delivery of legal services;
• Assisting lawyers in implementing systems and
controls to reduce risk and improve quality in the
delivery of legal services;
• Assisting lawyers in client relations; and
• Assisting lawyers and their office personnel in using
emerging technologies to improve the delivery of legal
services.
Management Assistance Program
• Free Telephone Hotline — The MAP staff attempts to answer brief
questions about management and technology issues. Our number
is (405) 416-7008. Often we are able to provide callers with a
citation to more detailed paper or book with more information
about the topic.
• Free Consultations at the Bar Center — Any lawyer who is setting
up a new practice or has encountered a difficult issue that cannot
be comfortably handled over the telephone is welcome to schedule
a free 50-minute appointment with the MAP director.
• Office “Health Checks” — These consultations take place in the
lawyer’s office on a fee for services basis. A wide range of
management issues can be covered. Typically all staff and attorneys
will be involved both in group and individual interviews.
B. Client Management Procedures
1. Screen Prospective Clients
pp. 373-74
Besides doing required conflicts
screening, before undertaking
representation evaluate bigger
questions: do you & your firm want to
represent this prospective client? Or
are there telltale signals they will be
difficult client?
B. Client Management Procedures
pp. 372-94
You Want to Undertake, now:
***1. Screen Prospective Clients with thorough
conflicts check
Fortney & Hanna: Long list of persons whose interests
should be analyzed, including lawyers, office staff & their
former employers, business interests, and all possible
parties & related entities & alliances. Some can be done
by sophisticated software; other subtle checks through
New Business Memo (NBM), judgment calls require
evaluation by rational, cool-headed human actors.
N.B. Ethics 20/20 will propose expanding 1.6(b)
exception to permit better conflicts screening for lateral
hires, law clerks & staff. No controversy expected.
Careful process of analysis &
appropriate response to potential
conflicts: “cold shower”
Review: is there potential conflict with
current or former client, or prospective
or putative client? If so, carefully
consider whether it is consentable and
whether firm thinks it prudent to seek
consent. Proceed cautiously & with
attention to details.
Client relations problems?
3. Use Non-Engagement Letters
pp. 389-90
Martyn: avoid “accidental clients”: adopt strong
firm policy to send anytime decides not to
represent.
Text: Unless prospective client meets with firm
lawyer at 11th hour, Martyn/text discourages
reference to any specific limitations period so
cannot be later claim of reliance on incorrect legal
advice.
Also: letters to prevent reliance by unrepresented
third parties.
4. Obtain signed engagement agmts
pp. 390-92
While written agmt not required in most juris’ns
(unless it’s % fee), best way to avoid unpleasant
disputes re fees, costs, trust accts, billings, scope
of representation, client identity, firm staffing,
basis for withdrawal or termination, dispute
resolution.
5. Cement Client Relations
pp. 392-93
Firm procedures: cc C on all correspondence,
filing (cheap & convenient)
During lulls in activity, ticklers to evaluate
whether some status report appropriate.
RETURN PHONE CALLS PROMPTLY!
Monthly, detailed billings
Client audits: How are we doing? Feedback on
C satisfaction.
6. Use Care in Terminating Repre’n
pp. 393-94
·When representation complete, per terms of
retainer, send closing letter! (no more work will
be done, now former C)
·Working L shd prepare closing memorandum,
sent to C, clean out superceded workpapers.
·Follow firm’s written protocol on file retention,
in accordance w/ state & fed’l law. Advise C on
right to file, per retainer ltr.
·Avoid suit for unpaid fees!
C. Administrative & Work Control
Systems
pp. 394-96
• Administrative errors account for largest category of
LM claims, including accurate calendaring & failure to
respond to calendar.
• Software + hard copy calendars; built-in redundancy in
case of disaster. Clinic: Practice Master
• Lawyers must calculate deadlines – not delegate to
staff.
• Master calendar + back-ups
• Each open case should have at least one docket date –
so regular review
• Log all activities
D. Human Resources Management
pp. 396-402
• Enlightened firm management: lawyers &
staff are human, not robots; c/n just focus on
bottom line of profitability. Strong + positive
ethical infrastructure with back-up systems.
• Larger firms: Employee Assistance Programs
• Healthy workplace & work/life balance
becoming general concern of organized bar &
firms
D. Human Resources Management
pp. 396-402
• Top down leadership: Managing Partners/SH,
Partners, Associates, all staff: importance of
shared responsibility for quality work product;
teamwork approach
• In-house Continuing Education
• Lateral hires (both lawyers & nonlawyers):
training on firm values, risk-management
process, protocols. “indoctrination”
D. Human Resources Management
pp. 396-402
• Internal enforcement mechanisms
– Positive reinforcement (by example, right way to
act)
– If needed, sanctions
• Set forth in written firm policy manual
• Regularly enforced
• Progressive discipline
• Transparent & fair evaluation systems
– For retention, bonuses, compensation, salary
increases, partnership/shareholder status