Avoiding Legal Malpractice Law Suits Daniel L. Abrams Law Office of Daniel L. Abrams, PLLC 2 Penn Plaza, Suite 1500 New York, NY 10121 Dan@LawyerQuality.com 1
Daniel L. Abrams concentrates his practice in the areas of commercial litigation, legal malpractice, legal ethics and appeals. Mr. Abrams received his J.D. from Yale Law School in 1995 where he was an Olin Fellow of Law and Economics. He is licensed to practice law in New York State, and is a member of The Association of Professional Responsibility Lawyers and the Association of the Bar of the City of New York, where he served on the Professional Responsibility Committee and the Subcommittee on Lawyer Promotion and Advertising from 2004-2007. He also serves as a member of the Lawline.com faculty, and has lectured for the Practicing Law Institute, lecturing on behalf of these associations to provide Continuing Legal Education credit to attorneys on legal ethics issues. He has also appeared as a guest lecturer at Suffolk University Law School on legal ethics. He has provided expert testimony on legal ethics and malpractice. His litigation cases include a multi-million dollar reversal of an arbitration award, a defense victory after a bench trial in a breach of contract case, and many favorable settlements of commercial disputes and legal malpractice cases. DISCLAIMER: The following materials and accompanying Access MCLE, LLC audio program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an as-is basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author s absolute and unqualified disclaimer of liability. 2
Table Of Contents Introduction:. I. Client Selection. II. Retainer Agreements. III. Day-To-Day Client. Communications IV. Legal Bills. V. Withdrawal. Should I Stay or Should I Go? VI. Tips and Conclusion. Pages 4-6 Pages 7-11 Pages 12-14 Pages 15-17 Page 18 Pages 19-23 Pages 24-25 3
INTRODUCTION: Why Do Clients Sue? The Perception Of Disloyalty Is The Primary Reason; A Bad Result Is Usually A Secondary Consideration; The Existence or Non-existence Of Attorney Negligence Is Usually A Tertiary Consideration. 4
What Do The Strongest Malpractice Cases Look Like? Clear Mistakes (e.g., missed deadlines, suing the wrong party); Conflicts Of Interest Or Something Else That Can Increase Jury Appeal; High Economic Loss; Tight Causal Connection Between The Mistake and The Loss; 5
Stages Where Attorneys Often Get Into Trouble Client Selection Retainer Agreements Routine Client Interactions Legal Bills Disengagement 6
Client Selection: Rules Implicated Rule 1.1 Competence Rule 1.5 Fees Rule 1.7 Concurrent Conflicts Rule 1.9 Conflicts With Former Clients Rule 1.13 If Client Is A Corporation Rule 1.18 Duties To Prospective Clients 7
Client Selection: Try To Avoid These Clients The Wanna-Be Attorney Uninterested Client Dishonest or Gray Area Client Cheapskate Client Last-Minute Client *** Also be wary of taking on matter where you lack appropriate experience 8
Client Selection: Where Client Expectations Begin Test Client By Discussing The Downside This Will Build Trust With Good Clients And Likely Scare Away Bad Ones. 9
Client Selection Part 2: Securing Clients Over The Internet Do Not Give Advice To Strangers Over The Internet; Attorney-Client Relationship Does Not Require A Meeting Or Even A Phone Call; E-Mails May Come From States Where Attorney Is Not Licensed To Practice; You Risk Being Sued Out Of State And Forfeiting Malpractice Coverage 10
How To Decline A Representation Just Say No Can Be Risky, Though Most Attorneys At Least Occasionally Do This; Notify Client In Writing If You Have Met Face to Face In Your Office, Or A Statute of Limitations Is About To Expire; Avoid The Forever Lingering Consultation Either Take The Matter On Or Turn It Down. 11
Retainer Agreement Have One In Writing; Define The Scope Of The Representation (Rule 1.2); Specify Fees, Billing Practices and When Payment Will Be Expected; Deal With Any Potential Conflicts Of Interest; Money Up Front. 12
Retainer Agreement: Dual Representation Be Especially Wary Of Representing More Than One Client; Be Mindful Of Rule 1.7; Secure Waivers If Necessary, But Not All Conflicts Can Be Waived; Regardless Of What The Waiver Says, Keep Dual Clients Informed Of Developments Which May Aggravate The Conflict 13
Retainer Agreement: Corporate Clients Clarify The Client (i.e., the corporation, not the person who hired you); Follow Rule 1.13; Specify The Chain Of Command And Follow It; Deal With Contingency Of A Disagreement Among Corporate Principals Or Change In Corporate Control. 14
Client Communications: Rule 1.4 Promptly Inform Client Of Any Circumstance Requiring Client s Informed Consent; Reasonably Consult With The Client About Tactics; Keep Client Reasonably Informed Comply With Reasonable Requests For Information *** The Adverbs Are Not That Useful In Deciding What To Do Day-To-Day 15
The Start Of A Representation: Best Time To Explain What You Can And Cannot Do; Approximately How Much It Is Likely To Cost; Process; Possible Outcomes; How You Like To Communicate 16
Day-To-Day Client Communications Listen; Become The Narrator Of The Legal File; Make Sure Client Consent Is Documented; Return Phone Calls/Respond To E-Mails; Discuss Tactics With Client; Talk About Money 17
Communicating In A Legal Bill Monthly; Time Entries Should Actually Explain What You Are Doing; Minimize Surprises Related To Content And Amount; Client Questions About Bills Should Be Answered In Plain English; Don t Let Clients Get Far Behind On Their Bills. 18
Should I Stay Or Should I Go? Four Reasons Attorneys Want Out: Deterioration In Relationship; Not Getting Paid; Emerging Conflict of Interest; Personal Circumstances 19
If I Go There Will Be Trouble Rule 1.16; Attorneys Firing Clients While Legal Work Is Pending Is Disfavored; In Litigation, Lawyer Can Only Withdraw With Permission of Court; Withdrawing Attorney Must Protect Client Interests; Escape Clauses Do Not Override Rule 1.16. 20
Poor Reasons For Withdrawal Too Many Other Client Commitments; The Case Is Too Expensive To Finance; A Weak But Non-Frivolous Case; Lateral Moves; Desire To Cure A Conflict So That The Lawyer Can Take On A More Lucrative Client. 21
And If I Stay It Will Be Double: Good Reasons To Withdraw Toxic Clients; Breakdown of Trust; Unpaid Legal Bills; Emerging Conflict Of Interest; Accusation Of Malpractice 22
The Disengagement Letter Confirm That Its Over; Provide Notice If Possible And Necessary; Do Not Comment On Merits; Recommend That Client Hire Other Counsel, And That New Counsel Call You; Provide Balance Information But Avoid Turning It Into A Collection Letter; Discuss Status Of File. 23
Miscellaneous Tips 1. Stay Educated. 2. Double Calendar All Deadlines, Appearances And Limitations Periods. 3. Maintain Malpractice Insurance. 4. Notify Client And Carrier About Any Potential Problem. 5. Write A Letter To The Client Confirming That A Representation Has Ended. 24
Be Cautious Before: Asserting A Retaining Lien; Suing A Former Client For Unpaid Fees; Entering A Business Relationship With A Client; Taking On Too Much Work; Overpromising, Either In Terms of Work Product Or Anticipated Results. 25