From 2000 to 2007, over 42,000 legal malpractice lawsuits were reported to liability (malpractice) insurers, according to the American Bar Association Standing Committee on Lawyers Professional Liability. This committee segregated 21 root causes of negligence across all practice areas.
Only one such root cause accounted for over 10% of the total claims. “… This root cause is failure to know or apply the law…” This accounts for 11.3% of the total. As one pundit said, that’s an easy one to correct by “…sticking to your knitting…” Handle only matters you are competent to handle, even if the client’s money is on the table, tempting you.
Malpractice actions otherwise can be categorized as time – based issues, such as failing to calendar dates, failing to follow up on looming deadlines and failing to react appropriately to the calendar. These three together account for 17% of the total.
“Conflicts of interest,” amounts only to 5.3% of the claims in the ABA study. However, Rules of Professional Conduct 3–300 and 3-310 provide a larger trap for the unwary, whether at the beginning of a case or mid-stream.
“Collection policies” is a major speed bump for lawyers. Insurance companies and law schools will urge strongly that a lawyer never sue for unpaid fees because the following day, the same lawyer will be sued for negligence. There are a several ways to address this, including doing good work, regularly reviewing your accounts receivable to be sure the client pays under the terms of his or her signed engagement agreement and conducting a peer review of one’s own work before following through with a collection complaint. Failure to pay is seldom because of absence of funds; it is a symbol of dissatisfaction with the lawyer and the process of communication (or lack thereof) … and this must be addressed promptly.
Failure to act from fear of one’s own imperfections merely gives strength to one’s client and encourages the client to violate the agreement and the reason to be connected with the lawyer.
The practice of law is a business and must be operated under good business principles. Failure to do so creates tension and conflict between the client and lawyer at the time each needs the other the most.