As the billable year comes to an end, many law firms and attorneys are focused on collecting fees and making plans for the next year. However, there is no reason why bad habits in law practice management have to stay in place until the next calendar year. Indeed, even small improvements made during the last quarter of the year can help attorneys make significant strides toward reducing the likelihood or risk of a claim in 2019.
Some of the most glaring risk prevention tools are relatively simple to employ, and, in their absence, can create headaches for lawyers. Below are five areas in which attorneys can try to improve at any time of year.
Use a Docketing System Missing a deadline or failing to attend to client interests or demands are easy targets for malpractice plaintiffs, even where no injury or damage results. The rules of professional conduct attempt to ensure that attorneys safeguard the interests of their clients and not neglect matters entrusted to them. Yet even the most careful or experienced attorneys may inadvertently fail to comply with a deadline, particularly if a systematic approach is not applied. By adopting a concrete system for docketing, attorneys are much more likely to prevent time-related errors. It also means that attorneys do not have to keep deadlines in their memories.
The market is full of companies and programs that can help attorneys and firms track litigation and client deadlines. Effective docket control systems should help, not hinder, the practice of law. If a docket control system is not helping an attorney track and manage deadlines, there may be a better system out there. A docketing system can be user-friendly, accurate, and reliable.
However, it is critical that attorneys actually use a docketing system, once in place. If documents or deadlines are not being fed to the docketing system, there can still be a significant risk of missing a deadline.
Getting Control of Emails Another attorney bad habit is the use of an email inbox as a task list. If an email inbox is unlimited in size (or nearly unlimited), a busy attorney can inadvertently miss a deadline or an important communication because of delays in processing or reading emails. Leaving emails unattended to in an inbox, with the goal of “getting to them later,” can create unnecessary risk.
Handling and foldering messages appropriately can be of great assistance in this regard. Some firms will limit the number of emails that can be kept in an inbox, thereby encouraging lawyers to process emails in a more timely fashion.
Use Engagement Letters Engagement letters are important because they set out the parameters of the attorney-client relationship. Being clear in engagement letters can be of great assistance down the road if there is a dispute over what exactly the lawyer was hired to do. Thus, it can be helpful, if appropriate, to update existing engagement letters or prepare new ones for additional matters. Attorneys who “never” send out engagement letters can try to break that bad habit.
The consistent use of engagement letters can help reduce malpractice claims or limit their scope. For example, the engagement letter can clearly identify the client, the scope of representation, the duration of the representation, and the fees to be charged for the firm’s services. Having these terms in writing may prove helpful down the line.
When individual attorneys use a general engagement letter, such an approach can suggest that the attorney undertakes to advise the client on any possible legal issue that arises, far beyond the actual intended scope of the representation. This can create additional unnecessary risk.
Ensure That Insurance Coverage Is Up-to-Date Legal malpractice insurance is a necessity of the modern law practice. Although few states actually require an attorney to carry legal malpractice experience (or to disclose to the bar or their clients if they do not carry insurance), legal malpractice insurance is a benefit to all attorneys, even those who do not anticipate receiving claims.
Attorneys can be candid about what they need for insurance coverage in their practice. Being honest in a self-assessment about what practice areas the attorney engages in or what additional terms would be of benefit to the attorney is a plus. Carriers offer many different packages and coverages that can be of interest to attorneys. Some carriers even offer benefits for a firm’s good risk management practices.
It is helpful to review an existing professional liability policy before a claim is made to identify any potential gaps and to fully consider whether the policy provides everything the attorney needs. Renewals should be fully reviewed and analyzed to make sure that there are no unnecessary holes in the coverage.
Protect Mobile Devices The use of modern technology creates challenges for lawyers, who have a professional duty to maintain client confidences and secrets. Every attorney is essentially carrying a full computer (and access to his or her firm’s files) through the smartphone in his or her pocket.
To ensure that secrets are kept safe while using mobile devices, most law firms require the use of a passcode on the physical phone. In that way, if a phone is left on an airplane or in the back of a taxi, the finder is not automatically permitted into the firm’s files and network.
Some firms use programs that allow them to “remote wipe” data from their devices in the event the devices are lost or stolen. Others use programs that ensure that smartphone data is encrypted, or consider employing features such as GPS tracking and secure file sharing. What works best may vary by firm or client.
Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chairwoman of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna G. Clair is a partner at the firm and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”