By Warren R. Trazenfeld, Esq.
Malpractice claims can be devastating to lawyers. They are expensive to defend, time-consuming, emotionally draining, and can be bad publicity. Implementing the following tips will help to greatly reduce your risk of being sued for legal malpractice.
Failing to give the client a basis for making a cost/benefit analysis
Legal fees in a case often outweigh the economic benefit that can reasonably be expected to be gained by the client. Attorneys who get sued often simply do what the client requested: the client didn’t understand that doing what was requested would cost so much with so little chance of success. Consider and explain whether the client can get what they really want from the lawsuit.
Use effective retention agreements
Preparing specific engagement and non-engagement letters can provide strong defenses if a lawyer is sued. Moreover, many lawyers represent clients on multiple matters. Preparing separate engagement letters for each new matter, and avoiding general representations such as “corporate advice” or “general business matters,” could make the difference in a legal malpractice case.
Failure to document the client’s choice of an economic decision
Clients often decide that they cannot afford a course of action that the attorney suggests. The attorney must document the client’s choice not to undertake such investigations.
The client from hell
Don’t be afraid to turn down a client. The most important client to your practice may be the one you turn away. Beware of clients who fired their previous counselor who have been turned down by other lawyers. Think twice about a client who has more litigation experience than you do, or the one who has nothing good to say about lawyers or the legal system. But most importantly, run from the clients who just don’t feel right. Trust your instincts.
Manage your clients’ expectations
Many clients’ exposure to the legal system is limited to what they see on television, which usually gives them unrealistic expectations about what you and the
legal system can do for them, how long it will take to do it, and how much it will cost. Clients expect to be vindicated in the courtroom or across the transaction table. Rarely do they view their legal predicament with objectivity, so they need their lawyer to explain realistic goals.
Few things look worse in a legal malpractice case than conflicts of interest
Most potential or actual conflicts can be foreseen and resolved at the outset of a matter with an inquiry or a conflict waiver letter, which in the long run is a lot less trouble than
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taking a chance and getting sued. Conflicts appeal to a juror’s sense of right and wrong and they punish the lawyer who attempts to serve multiple interests.
Warren R. Trazenfeld, P.A. is a Coral Gables, Florida-based law firm. The practice focuses on litigation against negligent attorneys and accountants. The firm’s website is located at www.FloridaLegalMalpractice.com. Warren Trazenfeld can be reached at wrt@trazlaw.com or (305) 860-1100.
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