Thank you for sharing!

Your article was successfully shared with the contacts you provided.
All attorneys make mistakes. Unfortunately, young lawyers often are trained that not only is second place unacceptable, but that they also must win at all costs and that mistakes are best left covered up. This article discusses mistakes made by new attorneys and how to avoid them. But don’t kid yourself: This article applies to experienced attorneys, too. What follows is a “top 10″ list for becoming a better lawyer. Mistake No. 1: Not being frank with clients. One of the reasons mediation has been such a successful method of resolving cases is that, more often than not, mediation is the first place clients hear about many of the weaknesses of their case from someone other than their opponent — clients sometimes don’t hear this from their own lawyers. Inflating client expectations is a common mistake that can lead to claims of legal malpractice. After all, when the lawyer isn’t frank with the client, how can the client decide when and how to resolve a dispute with a lawyer? Mistake No. 2: Taking on matters that you are not capable of handling. The lawyer also must be frank with the client and himself about whether he has sufficient experience regarding the type of matter a client wants handled. Wading into uncharted waters is risky for lawyer and client. Don’t go in unless the client understands your experience (or lack thereof) and your willingness to do what needs to be done to handle the situation adequately (whether that’s through additional counsel or other ways). Otherwise, great risks may lie ahead. Mistake No. 3: Not being frank with the boss. Shoot straight with the boss and co-workers. If you don’t understand an assignment, let them know. Don’t be afraid to seek additional guidance and clarification. Doing so is not a sign of weakness; it’s a sign of strength. Clients certainly will appreciate it. If the boss or co-workers do not appreciate it, you may work at the wrong firm. Mistake No. 4: Not getting along with clients. Lawyers need to accept and confront situations when they are not getting along with clients. Sometimes, lawyers represent clients whom they detest. Not surprisingly, lawyers in these situations invariably ignore the file and don’t return the client’s phone calls. Doing so can result in an appearance before the local grievance committee or a court in a malpractice suit. If the lawyer and the client don’t get along, discuss the situation with your boss who ultimately may broach the subject with the client. Mistake No. 5: Overbilling. Being a young, impressionable lawyer provides many opportunities to do the right thing. Unfortunately, such opportunities also present themselves as invitations to do the wrong thing. One such invitation is hourly billings. Lawyers who work at firms that have minimum (albeit high) billing requirements, or even just at firms that have hourly work, will be presented with an empty time sheet each day and asked to fill in how much time they spent working on specific projects. In fact, a lawyer may have to sit down with one of the firm’s partners and explain why the monthly billings did not surpass the minimum requirement. Billings equate to dollars, and dollars oftentimes drive people to do bad things. Inflated billing is certainly a temptation that new lawyers will face. Don’t do it — regardless of who may get upset in the process. It is a common problem that can lead to a legal malpractice suit. SPEAK UP Mistake No. 6: Not telling clients about mistakes. A defendant in a legal malpractice suit may be tempted to alter documents to cover his tracks. Besides the fact that this can constitute a felony, it can lead to further problems with respect to the client’s case. Many experienced lawyers have stories about how they made mistakes, informed the client of them, and the situation resolved itself without any harm to the client or lawyer. Trying to hide mistakes from clients, the boss or co-workers is a temptation to which too many succumb. In fact, read the language of whatever professional liability policy applies to you, as such policies typically require a lawyer to put the carrier on notice of problem situations, regardless of whether the lawyer has been sued. And if you or your firm doesn’t have a professional liability policy, get one — you owe that to your clients. Mistake No. 7: Missing deadlines. This is one of the most common types of “negligent” conduct committed by attorneys of all ages and experience levels. Whether the deadline involved is an expert-designation deadline, statute of limitations deadline or response deadline, they invariably will be missed some of the time by some attorneys. It is critical to have at least one, if not two, calendaring systems. Preferably, one system is computerized and one is on paper (e.g., a good, old-fashioned paper calendar). If you use only one calendaring system, make it a computerized system with “ticklers” that remind you ahead of time about upcoming deadlines. Mistake No. 8: Not using fee agreements. It is amazing how many lawyers still do not use a written fee agreement each time they do work for clients. Fee agreements are required some of the time (e.g., for contingent-fee cases), but they should be used all of the time. The first place legal-malpractice attorneys look when suing a lawyer is at the fee agreement — if there even is one. That’s because it is the fee agreement that can dictate what the scope of the representation was in the first place, including any limitations on such scope. With no fee agreement in place, who is to say what the scope of the representation was supposed to be? Not only should lawyers always use written fee agreements, but they also should make sure the terms of the agreement accurately reflect what they’re hired to do (e.g., reflect the scope of work as well as possibly what work is not being handled by the attorney; identify who is, and possibly who is not, the client). Mistake No. 9: Not reading and abiding by your state’s code of professionalism. In Texas, for example, practicing by the Texas Lawyer’s Creed is not an option — it’s mandated by the Texas Supreme Court. In it, lawyer’s will find words such as “dignity,” “integrity,” “highest principles,” “pro bono,” “allegiance,” “skill,” “loyal,” “fairness,” “courtesy,” “candor,” “cooperation” and “respect.” It is indeed a mistake for any lawyer of any age or experience level to stop reading and abiding by such codes of professionalism. Mistake No. 10: Not doing pro bono work. Although not doing it won’t get a lawyer sued for malpractice, new lawyers should perform pro bono work from the get-go. There are many people in need of such services. Lawyers help themselves when they help others, which translates to better representation of paying clients. If your firm discourages the desire to do pro bono work, you may work at the wrong place. Remember that all lawyers make mistakes. Lawyers owe it to their clients and themselves to do the best they can to not only avoid making mistakes, but also to confront and deal with — in honest and forthright ways — mistakes when they happen. Brian Becker is a partner in Dallas’ Becker & Melvin. The firm focuses on pursuing claims against lawyers.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.