Risk Update

Covid Risk Management — On “Post-pandemic” Malpractice Mitigation

5 Ways To Reduce Post-Pandemic Legal Malpractice Exposure” —

  • Stay in your lane. The current pandemic has upended the legal industry in ways never before seen. Many firms have been forced to cut salaries, defer or withdraw partner compensation, and/or lay off attorneys and staff, all of which puts pressure, either real or perceived, on firm attorneys to generate new business. This can lead to attorneys accepting work that falls outside their area of expertise simply in an effort to keep themselves or others in the firm busy. Lawyers must resist the temptation to take on cases they are not qualified to handle or that fall outside their sphere of expertise.”
  • Define the scope of the representation of your engagement letter. While most states require engagement letters under their rules of professional conduct, reducing malpractice exposure is an important driver of this risk management tool. Clear and concise engagement letters define the parameters of the relationship and representation and remove any doubt or confusion about such things as who the client is and who the client is not, clearly establishing to whom the lawyer owes a duty… Engagement letters should also discuss and explain the conflict of interest checks run by the firm and potential conflicts that could arise during the representation, as well as the attorney’s right to withdraw from the representation for nonpayment.”
  • “Communicate frequently with clients and properly manage expectations. Lawyers should not create a situation where they can easily be second-guessed, and therefore should communicate early and often to set forth all the information available at the time and create a paper trail. Responsiveness to a client’s needs and demands in a timely fashion will keep clients happy and informed. When clients are not kept in the loop, they are more likely to bring an action against their lawyer if they don’t get the results they expected. Making a contemporaneous record protects against one person’s word being pitted against the other later on.”
  • Institute a comprehensive docketing system that assures the proper calendaring of events and deadlines. Courts nationwide have instituted COVID-19 scheduling changes, which effectively delay proceedings, stay deadlines, and in some cases prohibit new filings. In many courts, statutes of limitations have been tolled and filing deadlines extended. With each court and jurisdiction instituting different and distinct orders regarding filings and deadlines, it becomes more incumbent upon the attorney to stay abreast of all new filing deadlines.”