Top Tips for Mitigating Malpractice Risk
Utilizing the Lawyers Mutual of Kentucky claims data, we have identified the top areas of risk and, in turn, the top tips for mitigating that risk. For a more detailed discussion of the risks and mitigation tips, Lawyers Mutual insureds can view the Malpractice 101 on-demand CLE.
Be proactive and adopt risk mitigation practices.
- Calendar every case, not just those in litigation. Calendaring reminders to review a file regularly (at least monthly in most cases) will help prevent missing important deadlines. Use multiple calendaring systems, if needed.
- Use engagement, non-engagement, and termination letters. Confirm in writing your decision to accept a case as well as your decision to withdraw from or decline representation. Also, follow-up at the end of a matter with a termination letter. This provides documentation that you have communicated your decision or the status of the case to the client or potential client. Failure to routinely utilize these letters in your practice can have detrimental results, including vulnerability to malpractice claims for not protecting the interests of a client you did not think you represented.
- Do not sue clients for fees. A significant percentage of malpractice claims stem from lawyers suing for fees and the client countersuing for malpractice. At the time of engagement, discuss the billing practices and expectations and include provisions in the written engagement letter detailing the firm’s policy for non-payment, including withdrawing from a matter. Additional proactive billing practices, including monthly invoices with detailed billing entries, can help reduce the number of late payments with which lawyers have to grapple. Also, make sure to copy clients on all significant correspondence; clients that see you working are more likely to pay. For those clients that still don’t want to pay, consider reaching out and speaking to them personally before turning to mediation or arbitration to resolve the dispute.
- Take only those matters in which you have experience (or associate with someone who does have experience or knowledge about a specific case). Lack of knowledge of the law remains a top alleged error in malpractice claims. Lawyers have a responsibility to know the law and thoroughly research the issues at the outset of the case. If expanding into a new practice area, work with another lawyer that knows the law and can assist you in navigating your cases in the new practice area.
- Maintain good client relations. Communication with your client is key to preventing a client from becoming disgruntled. Remember, communication is a two-way street. Often, when a client feels heard, they are more open to hearing the lawyer’s advice (and less likely to become disgruntled).
- Do not have a personal or a financial involvement with your clients. Not only can financial involvement with clients raise potential conflict of interest issues, it also presents a can of worms if business relations start to sour.
- Research potential conflicts of interest before you take the case. At the end of an initial meeting, explain that you have to complete a conflicts check and, if clear, you will then send the engagement letter for review and signature. If there is a conflict, send a non-engagement letter.
- Investigate your case carefully before bringing a lawsuit or filing a claim. In addition to researching the legal issues, make sure you are reviewing and investigating the facts of the case. Do not evaluate the case on just the client’s word. Instead, exercise diligence in gathering and reviewing relevant documents and identifying potential witnesses. Ensure you have enough information to fully evaluate the case for the client and determine an appropriate strategy before filing a claim. If a client brings you a potential claim too close to limitations date, proceed with caution and consider declining the case if you do not feel comfortable moving forward.
- Document everything leaving a paper trail understandable by third parties. Having a paper trail that only you understand will not assist you if you are sued for malpractice. Ensure your documentation is easily understood, including letters to the client. You must be able to prove that you told your client everything central to the case.
- Know when to reject potential clients or cases. Learning to say no is key. If you do not like a potential client in the first meeting, do not agree to take their case. Even if you like the client, if the claim is weak or you know there are problems, trust your gut and decline representation.
- Obtain client consent before proceeding in a vital area of the case. Best practice is to provide a written update on the status of the case with your recommendation and then receive consent to proceed in writing. If a verbal conversation occurs about the strategy and next step, you should follow-up with written confirmation.
- Know what to do upon receipt of a malpractice claim. Call your legal professional liability carrier immediately upon receipt. If uninsured, retain legal counsel immediately (do not try to handle the case, yourself).
Be healthy and sober.
Studies throughout the nation have repeatedly demonstrated that alcohol, drugs and mental illness (including depression) are substantial contributing factors in many, and perhaps most, cases of professional misconduct that result in suspension or disbarment. Lawyer well-being is and always will be a risk management issue.
The Kentucky Bar Association provides resources to support lawyer wellness through two main programs:
- KYLAP (Kentucky Lawyer Assistance Program) is a confidential program of the Kentucky Bar Association that offers free help to judges, lawyers, and law students who are struggling with mental health issues, such as depression, anxiety, substance use disorders, stress, compulsive gambling, or any other condition that may adversely impact the individual’s personal or professional life. Pursuant to Supreme Court Rule 3.990, all communication with KYLAP is confidential. Contact KYLAP at (502) 226-9373 to get help for any Kentucky lawyer in need.
- LAW (Lawyers Advocating Wellness) provides a variety of CLE programing and other resources to support lawyer wellness.
Lawyers Mutual of Kentucky along with the Kentucky Bar Association and several other legal organizations formed the Mental Health Collaboration Group, focused on responding to lawyer wellness issues in Kentucky. LMICK supports this group’s mission by sharing and creating wellness resources on our website and our social media.
No matter what else happens in your professional career, no matter what else you may do or fail to do, pledge to yourself that you will be honest in dealing with whatever comes along. See SCR 3.130 (8.4). It is, without question, the single most effective thing you can do to limit your exposure to a malpractice claim or a disciplinary suspension.
Questions? Contact Courtney Risk at email@example.com or at 502-568-6100.
 You can find template letters under the Practice Management section of our website.
 Kentucky SCR 3.130 (1.1) Competence