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Legal Malpractice Claims : Ten Ways to
Avoid the Disciplinary System
1. Always return client phone calls as promptly as possible.
If you are unavailable, have a staff member return the phone
call to explain the delay and to try to assist the client. Most
bar complaints start as complaints of simple neglect that can
be sanctionable.
2. Put the terms of your engagement in writing. Better
yet, have the client endorse a written fee agreement. One-third
of all bar complaints involve fee disputes.
3. Bill the client regularly, even in cases where you have
advanced fees that have not been exhausted. Clients who
are regularly billed and advised of the accruing fees and costs
are less surprised about the costs of representation and have
little cause to complain about them later.
4. Copy the client on all pleadings and correspondence no
matter how trivial. Clients do not understand why it takes
so long to do what we do. Sending them copies of letters which,
for example, simply continue a court date or a deposition goes
a long way toward keeping the client advised of the status of
his or her case.
5. Never borrow from your trust account for cash flow or
other purposes. In fact, don't try to be your own book-keeper,
especially when it comes to trust accounts. This is a slippery
slope -- once you take it the odds are overwhelming that you
will not be able to recover. As a corollary, don't try to be
your own bookkeeper, especially when it comes to a trust account.
More trust account complaints state because of sloppy bookkeeping
or not fulfilling the regulatory requirements regarding maintaining
proper ledgers and undertaking proper reconciliations.
6. Think twice about holding on to a client's file to secure
a fee -- the potential trouble usually outweighs the benefits.
You can only do so under limited circumstances and the potential
for trouble outweighs the benefit.
7. Do not take cases that you are unable to staff correctly
or you lack the competence to handle unless you associate with
an attorney who had the required knowledge and skill. Once
you take a case you are responsible for it and have represented,
either explicitly or implicitly , that you are able to handle
it. Make sure that is true. Sharing a fee with another attorney
(so long as the arrangement is reasonable and consented to by
the client) is infinitely better than mishandling the case and
potentially having to face liability of your own.
8. Be realistic when you set and explain retainer and billing
arrangements. Many of us have a hard time telling a client
how much a case really costs so we underestimate the fees or
retainers. Invariably, the client feels that he or she is being
overcharged and stops paying the bills, gets angry and files
a bar complaint.
9. Avoid getting in to business with a client in return for
a fee. Inevitably when the "deal" goes bad, the finger pointing
is in the attorney's direction.
10. Always be willing to assist a colleague who asks for
your help or who you believe needs your help. The whole
system of justice and the general public benefit from self regulation
of the legal profession. If we don't assume responsibility to
help each other, we may face the day when a state or federal
bureaucracy steps in to regulate our profession. But note, you
don't have to undertake the task of assisting a colleague who
is under a disability that adversely affects his ability to
practice law. Such resources already exist in the Virginia State
Bar's Lawyers Helping Lawyers program.
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