Jim Calloway, The Daily Record Newswire
Many lawyers don’t realize that communication delays and errors are the cause of malpractice claims brought by clients.
Attorneys typically understand that failure to keep a client adequately informed of his or her matter might constitute a breach of the Rules of Professional Conduct. But for malpractice to occur, one would think the client has to sustain some sort of monetary damages. And there is really no economic damage to the client who gets her phone call returned on Friday instead of Monday, right?
But communication failures are actually the number one cause of professional liability claims, according to Dan Pinnington, vice-president of Claims Prevention & Stakeholder Relations at LAWPRO, a professional liability carrier based in Toronto.
“It is very interesting to note that for solo, small, medium and large firms alike, one-third of professional liability claims [are] communications-related. This is a profession-wide issue,” Pinnington said.
So how can a “mere” communications failure lead to a lawyer being sued for malpractice?
There are three major types of communication-related errors, according to Pinnington. The most common are claims involving a failure to follow the client’s instructions. These claims arise when the lawyer and client disagree on what was said or done — or not said or done.
“These claims tend to come down to credibility and in handling claims, LAWPRO finds these matters are difficult to successfully defend if the lawyer has not documented the instructions with sufficient notes or other documentation in the file,” he said.
The second most common communications error is a failure of the lawyer to obtain the client’s consent or to properly inform the client, Pinnington said. These claims involve the lawyer doing work or taking steps on a matter without client consent (e.g. seeking or agreeing to a continuance of a hearing or making or accepting a settlement offer); or failing to advise the client of all implications or possible outcomes when decisions are made to follow a certain course of action (e.g. pleading guilty on an alcohol-related driving offense).
A lawyer may believe that professional courtesy demands a continuance if opposing counsel’s spouse has been hospitalized, for example, and the presiding judge will certainly grant the continuance in those circumstances if the issue is forced. But the client needs to understand that in advance rather than merely receiving notice from the lawyer’s staff that the much-anticipated hearing has been delayed for several months.
The third most common group of communications errors involves poor or inadequate communications more generally, Pinnington said. The professional liability claims here tend to involve failing to explain to the client information about relatively minor details such as the sequence of steps that take place during a matter or details about fees and disbursements. It is fairly easy for a lawyer who has done something many times to fail to let the client know of a routine circumstance that may not seem at all routine to the client. There can also be confusion over whether the lawyer or client is responsible for doing something during or after the matter (e.g. renewal of a registration, paying an annual fee or sending something as simple as a lease renewal notice to a landlord).
The positive aspect of communications-related claims is that they are among the easiest to prevent. In today’s environment, attorneys in firms of all sizes should have communication processes and procedures established that rival the processes for handing the substantive issues of client matters.
Here are some tips for preventing communications-related legal malpractice lawsuits:
• Managing client expectations from the very start of a matter is critical. Spend time in the initial interview outlining how the matter should proceed and potential roadblocks or issues that may surface. Lawyers sometimes take clients with unreasonable expectations about the value of a matter, thinking that they will be brought back to reality as the case progresses. That is an increasingly poor business decision.
• The smart lawyer will appreciate that now, more than ever, actively communicating with the client at all stages of the matter is essential.
• Documentation is often a major problem for busy lawyers. The client will have a clear recollection of his or her one matter. But the lawyer handling many similar matters will not have such a vivid memory of a single fact or conversation. Even if the lawyer does have a clear recollection, the lack of documentation may cause a finder of fact to believe the earnest client. Create a paper trail by carefully documenting instructions and advice, and confirming what work was completed on a matter at each step along the way.
The form used in the initial client interview should include several steps where the lawyer writes his or her initials to confirm that critical information was discussed with the client.
• Email is a quick and easy way to document an interaction with the client or an action taken related to the client’s case. But email is unreliable and most of us struggle with our overflowing inboxes. When the client replies to an email, you have proof that he or she received it. Preserve that reply. Microsoft Outlook Options can be set to give you a notice when a client reads an important email. Preserve that as well.
• Your staff should be trained to document all of their client interactions as well, and to pass the information along to the lawyers when a client expresses discontent with the services of the law firm.
Taking these proactive steps will not only limit your potential professional liability for communications errors, but also should result in more satisfied clients who will return for future legal services and perhaps refer you other clients in the future.
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Jim Calloway is the Director of the Oklahoma Bar Association Management Assistance Program. He publishes the weblog Jim Calloway’s Law Practice Tips. He is a frequent speaker on law office management and technology issues.
