Managing the Risk that Comes From Bad Lawyering


The American Bar Association Standing Committee on Lawyers’ Professional Liability has been providing a statistical analysis of claims data collected from various lawyer-owned and commercial insurance companies for years. One number that I consistently pay attention to has been the number of claims that arise as a result of a substantive legal error.

While this number has varied a bit, it generally seems to hover around 46%. In short, this means that roughly 46% of reported claims in any given year are a result of an attorney:

  • failing to know the law,
  • failing to properly apply the law, or
  • failing to know or ascertain a deadline.

This category also includes missteps such as:

  • inadequate discovery or investigation,
  • a conflict of interest,
  • a planning error,
  • a failure to understand or anticipate tax consequences, and
  • an error in a search of the public records.

From a risk management perspective these kinds of errors are more difficult to address because they arise out of an attorney’s abilities, or lack thereof, as opposed to being a problem with a firm practice or procedure. While a risk manager can help an attorney develop a more effective calendaring system or tighten up file documentation; it is far more difficult to discuss and address what in reality is often simply bad lawyering.

That said, here are a few suggestions that if taken to heart can help reduce the risk of these types of claims.

Don’t Dabble!

The first and most important practice tip I can share is one you probably have heard before. Take this to heart. Don’t dabble! Truly, there is no such thing as a simple will or simple contract. What looks like a simple contract may in reality may be a trap because you’re not aware of a unique and not widely known local law that significantly affects the contract’s terms. In truth, the dabbler doesn’t know what he doesn’t know and therein lies the problem. If any client asks you to do work that is beyond your comfort zone or outside of the areas in which you regularly practice, caution is in order. If you feel you must accept it, only do so if you are willing to seek guidance from an attorney knowledgeable in the practice area to ensure that you adequately and appropriately address the client’s matter.

Prioritize CLE.

Too often attorneys attend whatever CLE is available when their reporting period is about to expire. They’re going through the motions to get the credit and seem not to care that the program has no relevance to their practice. Who hasn’t witnessed fellow attendees doing something other than staying focused on the CLE presentation? I have watched attorneys browse the Internet, catch up on work, take naps, and even check in and then spend the bulk of the event outside of the meeting room. In fact, a few years back I witnessed someone check into an event with clubs in hand. He signed in, picked up the materials and then headed out for a round of golf. With alternative formats such as videos, teleconferences, and web presentations, it’s even easier to pay only halfhearted attention. The better approach would be to take CLE that is relevant to your practice area. Seek out quality programs and try to get as much from the experience as possible. Stay attentive, ask questions, and read the supplemental materials after the program has ended. CLE can be an effective way to stay current on major developments in your principal areas of practice if you invest in the process. One side note here, don’t minimize the value of any educational opportunities that focus on improving your research and legal writing skills. Trust me; there are more than a few of us who could greatly benefit from these types of programs.

Paid or Free, You’re Still On The Hook.

Don’t fall into the trap of thinking that because the work is really only a legal favor for a friend, family member, or staff member it’s okay to not give it your all. Wrong. There is no such thing as “light advice” when it comes to your performance. Favor or not, this is real legal work and you will be held accountable for the outcome.

Take Care of Your Health.

Prioritize you own health and well-being as a way to stay sharp and focused because shoddy work is shoddy for a reason. For example, if you invest little or no time pursuing personal interests and taking vacations because your workload is beyond reasonable your energy level and performance will suffer. Mistakes are more likely to happen when you are tired, the work has become mundane because it’s all you do, or burnout has started to enter the picture. For similar reasons, don’t minimize the importance of nurturing the important personal relationships in your life. If these relationships are neglected for too long the support systems they represent may not be there when you most need them, which can also lead to serious performance shortcomings down the road.

Bad News Doesn’t Age Well.

Finally, keep in mind that bad news doesn’t get better with time. If a mistake has been made, deal with it immediately. Inform your malpractice carrier and let the client know in accordance with your carrier’s instructions. Sometimes the damage can be mitigated and sometimes the mistake can even be corrected; but things will only get worse if you miss the opportunity for repair and also decide to ignore the problem. It can be a hard pill to swallow but malpractice missteps don’t go away on their own regardless of how much you might wish otherwise.

What have been your experiences?

All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.

This entry was posted in Guest Bloggers, Solo & Small Firm Practice and tagged ALPS, malpractice. Bookmark the permalink.

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One comment on “Managing the Risk that Comes From Bad Lawyering

  • As a member of the ABA Standing Committee on Lawyers’ Professional Liability I am glad to see an article like this. As a lawyer who represents lawyers, I am glad to see an affirmation of the same advice I give to lawyers. All lawyers should be interested in improving their craft as well as the service they provide their clients. This is an easy way to reduce your risk of professional liability. Every lawyer should read this article!
    Great job!

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