Some lawyers make resolutions every year to get their practice more organized or to streamline their risk management procedures. By autumn, sometimes lawyers have all but abandoned their resolutions or have already vowed to start over again next year.
However, just as the practice of law and the rules that govern the profession are constantly evolving, attorneys similarly can find areas in their professional lives where they can make improvements in before 2018 ends.
There are significant amounts of data regarding legal malpractice claims against lawyers, including the frequency, type of law, size of firm, or even amounts of damages sought. This information can be quite helpful to lawyers and law firms in identifying areas of potential risk and adopting change.
To that end, lawyers do not have to wait for the ball to drop to start making some improvements in their practice. Below are 5 good habits that attorneys can adopt at any time of year.
With court deadlines and client demands, attorneys often find themselves balancing many deadlines at a single time. However, when it comes to docketing important deadlines, attorneys may fall short in establishing a foolproof system to prevent time-related errors. 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.
Missed deadlines and docketing errors make up a significant amount of legal malpractice claims each year. Still, 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 only have to keep deadlines in their memories.
Docketing mistakes often result from attorneys relying on their email system or personal calendars to manage every aspect of their professional lives. In that way, time management in the electronic communication world, requiring the timely response to deadlines, is an old problem but with a new and ever-expanding dimension.
To avoid such errors, attorneys can employ and then re-evaluate their calendar or docket control system. 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 is still a significant risk of missing a deadline — and receiving a claim.
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. 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.
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 can be fully reviewed and analyzed to make sure that there are no unnecessary holes in the coverage.
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 their firm’s files) through the smart phone in their packet. There are some simple and easy steps attorneys can take to make sure their smart phones do not provide direct access to firm files for bad actors.
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 access 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 by client.
Defining the Relationships
Engagement letters are important because they set out the parameters of the attorney-client relationship. It is important to be clear in engagement letters and, where appropriate, update them or prepare new ones for additional matters. Thus, attorneys who “never” send out engagement letters can consider implementing that practice.
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.
Having a System for Processing Emails
It is not uncommon for attorneys to use their email inbox as a “to do” list, but it generally creates risk. 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.
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.
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 and is co-chair of Dentons’ global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”