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For the past 21 years, Marian C. Rice has made her living by defending attorneys who have been sued for malpractice. Her advice for reducing the likelihood of having to personally battle such claims? Be professional and employ proper work habits. According to Rice, more than 16 percent of all malpractice claims arise not from malpractice but from something seemingly more avoidable: poor attorney-client relations. “Our goal is not to win the claim,” said Rice, a partner at L’Abbate Balkan Colavita & Contini in Garden City, N.Y., and a lecturer on professional liability and risk management. “Our goal is to try to adapt habits and conduct so you can avoid getting sued in the first place.” Last week, Rice addressed some 30 people during a continuing legal education program called “Top Ten Tips on How to Stay Out of Your Lawyer’s Office,” presented by the State Bank of Long Island and held at its home office in Jericho. Among those attending were attorneys, insurance defense professionals and one lawyer-blogger who gives his own seminars promoting the philosophy of attorney-client harmony. Among the nuggets Rice offered: avoid suing clients for unpaid attorney fees wherever possible. “Odds are you’re going to get a malpractice counterclaim against you,” she warned the group. Fee disputes, she said, are often a catalyst for malpractice claims because they can bring to the fore client dissatisfaction over how a matter was handled and because a failure to regularly bill a client may lead to other communication breakdowns between lawyers and those they represent. Rice noted that Part 137 of New York state’s Rules of Court sets up an optional fee dispute resolution program, and she urged the attorneys to use it before litigating. Before suing, lawyers should ask themselves if the outstanding fees are worth the cost of litigation and, if the decision to sue is made, lawyers would be well advised to first have an impartial party review the case file for potentially actionable omissions, Rice said. Docket control is another important tip for avoiding a malpractice claim, she said. Firms should implement a redundant office and personal-diary system into which should be entered all filing and hearing dates associated with a particular matter. That system should be backed with adequate “ticklers,” or reminders the dates are coming up, said Rice. More than one in four malpractice claims arise from diary failures, she said, citing national statistics released last summer by the American Bar Association. Other potential practice hazards Rice identified included failures to recognize and deal with conflicts of interest; failure to keep up with new developments in one’s chosen practice areas; and venturing into unfamiliar areas of the law. According to the ABA, almost 10 percent of all claims arise from not knowing the law, Rice said. Certain areas, she noted, have a higher incidence of malpractice than others. Topping the list is personal injury law, which generates 20 percent of all malpractice claims. Real estate errors account for another 16 percent of claims; followed by defense work and family law claims at 10 percent each; trusts and estate claims at 9 percent; and bankruptcy and collections matters at 8 percent, she said. SMALL-FIRM TROUBLES Solo and small-firm practitioners have by far the most malpractice claims filed against them: one-third of all claims are against solos and another third are filed against firms with two to five lawyers. “Small firms tend to take on too much work in too many different areas in which they may not have expertise,” Rice said. Another important tip she gave: Keep tight records of matter engagements and disengagements, and correspond regularly with clients. Solo practitioner Arnie Herz of Port Washington, N.Y., who hosts a blog called “Legal Sanity,” was among those attending the CLE course. Calling the presentation “excellent,” he said that claims arising from client communication failures resonated most with him. David I. Levine of Mineola, N.Y., said the main piece of advice he took away from the seminar was to make sure an attorney to whom he refers a file also has malpractice insurance. Rice earlier had told the group that “you have to make certain that if something goes wrong [the receiving attorney] has the capacity to respond to the client. … Attorneys are very squeamish about that. But it’s very important.”

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