Malpractice Prevention: End of Summer Checkup

It might be hard to believe, but we’re already entering the third quarter of the year. Where has 2019 gone?

It’s a good time to review your law practice and assess how you are doing when it comes to malpractice prevention. It’s never too late to do this, and the results might help you consider some changes heading into 2020.

Most solo practitioners or lawyers in small firms I talk to think about risk management from time to time, but usually they do so in the context of a case they are working on or a sticky issue they are trying to resolve. Unfortunately, it is less common to find lawyers thinking about risk management in a preventive manner. Reading this article might inspire you to do so now.

At a recent continuing legal education seminar, many attendees wanted to talk to me after the program about some of the small, nagging issues that were keeping them up at night. They expressed the hope that they could implement some measures that might reduce their stress. Let’s give it a try.

In this article I present eight categories, which you might have heard about at a CLE presentation, that you should assess when looking at your overall practice. Now is an opportunity to truthfully assess how you think you are doing in these categories and consider ways to improve your risk management strategies. It might help you keep a client, save you some money, avert an Office of Lawyer Regulation (OLR) complaint or a malpractice claim, or even make you a better lawyer. At the very least, this process should help give you some peace of mind.

Office Management

One of the goals in managing your practice is to keep track of your time and energy so that you maximize your effectiveness. Work on being organized, but don’t let it consume you. Here are some questions to consider.

• Do you have procedures or policies in place for handling and storing incoming documents, whether they arrived as hard copies or electronically?
• Do you have a policy on using email? What steps do you take to ensure confidentiality of email or smartphone communications with clients?
• Do you use checklists, a tickler system, or both?
• Are you knowledgeable about law office technology and aware of software possibilities for docket control, time and billing, and other systems? There are plenty of options available to you. It can be confusing and overwhelming, but it’s worth it to sort out what might work best for you. The State Bar Practice411TM program, led by Christopher Shattuck, can be very helpful. You can e-mail him, or call (800) 957-4670.
• Do you support your staff through training and education, professional development, communication, feedback, and regular meetings?
• Do you explain office policies and procedures to each new nonlawyer employee and new lawyer?
• Do you have an employee policy manual?
• If you share office space with other lawyers, is there any aspect (shared signage, phone answering personnel, letterhead) that might reasonably lead a client to believe that a partnership exists?

Case Management

Staying on top of open files, of course, is critical. One of the most common mistakes alleged in malpractice claims is missed deadlines. Create ticklers for active files for automatic reviews, and schedule conferences with office associates or staff to discuss the status of active cases. If you do those things, you have a good foundation for avoiding scheduling mistakes or just plain procrastination on cases that need some attention. Here are some questions to consider.

• Do you follow a standard procedure for opening files that includes indexing, conflict checks, and calendaring deadlines?
• Are your case files stored at a central location in safe, secure cabinets? What about electronic files? Are they secure and well organized?
• Are your files well organized and easy to understand?
• Do you have a standard file-closing procedure? Do you have a procedure for sending written notice to clients, remitting a final bill, and closing out the trust account?
• Do you have a written policy on file retention, destruction, and storage?
• Do you use a case-management software program?

Calendaring

This category goes hand in hand with the previous category, case management. It is very important to have a reliable system for tracking dates and deadlines. That may sound obvious. But as I previously mentioned, too many lawyers make calendaring errors and end up missing deadlines. (Calendaring errors have generated approximately 12 percent of the malpractice claims reported to Wisconsin Lawyers Mutual Insurance Co. (WILMIC) since 2007.) Here are questions that may help you avoid being one of those lawyers.

• Do you have a computerized calendar system, a manual system, or an attorney calendar with a matching assistant’s calendar?
• Does someone on your staff always have access to your calendar, especially when you are out of the office?
• Do you have a backup system?
• Do you note on your calendar alerts before ultimate deadlines?
• Do you follow up to see that work was actually completed?
• Do you routinely enter important dates such as statutes of limitation, court appearances, procedural deadlines, client-imposed deadlines, discovery dates, billing dates, real estate deadlines, and dates you will be out of the office?
• Who in your office controls your docketing calendar?
• Is everyone in the office trained to use the office calendaring system?

Client Relationships and Client Communication

The way you communicate with your clients can make a big difference in the quality of legal service you are providing them. Just as important, it can affect the outcome of a case. Knowing the law and how to apply it are simply not good enough. Communication affects your clients’ expectations and whether or not they understand the nature of their legal issues. Whether it is oral or written communication, don’t overlook its importance. Here are some questions to ask yourself when dealing with your clients.

• Do you document in writing all your communications? Too many lawyers I have talked to over the years neglect to do this diligently. It’s not good enough to do it “most of the time,” as I have heard from lawyers. Try to make sure you do it all the time.
• Do you send new clients a letter of engagement? Does it include the scope and terms of your representation?
• Do you update your clients regularly on the status and progress of their case, even if there are few, if any, developments?
• Do you address your client’s expectations at the beginning of the case? Do you do the same during the case if you sense the client’s expectations are unrealistic?
• Do you return clients’ phone calls promptly?
• Do you make sure the potential client is a good fit for you and your practice before agreeing to accept the case?
• Do you decline cases outside your areas of practice or expertise?
• Do you continually reevaluate your cases, reviewing their strengths and weaknesses?
• Neglecting to communicate well with clients often leads to OLR complaints or malpractice claims. You might be surprised how much happier your clients are when they regularly hear from you, even if you don’t have a lot of news to give them.

Time and Billing

Your billing statements are a form of communication to clients. They tell the clients what you have done, of course, and how long you spent doing it. But billing statements also should convey to clients the value of your services and what they are getting for the money they are spending. Develop a procedure for communicating your fees and costs to clients and stick to it consistently. Make sure your clients understand how much and for which work they will be charged. Make sure they understand and are satisfied before you get deeply involved in their case. Fee disputes can be ugly and often lead to a malpractice claim. Here are some issues to consider.

• Do you use written fee agreements that spell out exactly what the client can expect?
• Do you discuss cost expectations with your clients at the beginning of the engagement?
• Do your bills clearly describe how you are expending your resources and time on a client’s case?
• When invoicing clients, do you show on the invoice everything you did on their case, including things for which you are not charging them?
• Do you keep detailed, accurate time records, including an itemized record of what you have done and how long it took?
• Do you bill regularly and consistently?
• Do you proofread each invoice before sending it out?
• How do you handle delinquent accounts? Do you send payment reminders?
• Do you ever sue clients for fees? Do you have a policy regarding suits for fees?
• Do you charge hourly rates or use contingency fee billing, and do you ever consider using what is known as value billing?

Ethics

I generally leave ethics to the real experts: people such as Tim Pierce and Aviva Kaiser at the State Bar of Wisconsin or Keith Sellen at the OLR. But generally, here are some questions for you to ponder when assessing how prepared you are to deal with this part of your practice.

• Do you know how to access the Rules of Professional Conduct for Attorneys? In case you never looked, you will find them in chapter 20 of the Wisconsin Supreme Court Rules.
• Do you ever read the ethics opinions handed down by the State Bar Professional Ethics Committee? You can typically find them in the Wisconsin Lawyer and at wisbar.org/ethop soon after they are issued.
• Do you require your staff to sign confidentiality forms acknowledging that they understand the necessity of safeguarding client confidences? A few lawyers I have talked to over the years have run into the problem of staff members not preserving confidentiality. (Even worse, several of them had staff who stole client funds.) Know your staff, certainly well enough to know whether they are trustworthy.
• Do you know where to call with a question on ethics and what to do when an ethics problem arises? Tim Pierce and Aviva Kaiser are great resources, available through the State Bar’s Ethics Hotline, (608) 229-2017 or (800) 254-9154.

Trust Accounts

Questions about trust account rules are best left to the experts such as the State Bar’s Pierce and Kaiser. However, compliance with the rules is an issue that bears mentioning because it is an important one. Trust accounts are not something you learn much about in law school, and lawyers often either overlook trust account matters or give them only cursory attention. But improper management of trust accounts can lead to lawyers being disciplined. Here are questions to consider.

• Do you know where to find the trust accounting rules? (Here’s the answer: They’re in SCR 20:1.15.) On July 1, 2016, new rules were enacted that included security and insurance requirements for electronic trust accounting. So, if you have not looked at the rules since then, it is especially important to do a thorough review of your practices now.
• Do you train and educate your staff on handling and accounting of trust funds?
• Are your office employees who handle trust accounts well versed on the rules and do you oversee their work?
• Do you use written disbursement statements when money is removed from a trust account and are clients given copies of these statements?
• How often do you reconcile your trust accounts?
• Do you make sure there are no commingled funds?
• Do you ensure there is no “borrowing” of funds from trust accounts?
• Do you periodically have an independent audit conducted on your trust accounts?
• Do you have a standard procedure for receiving and safeguarding client property?

Taking Care of Yourself

The legal profession might have sounded glamorous before law school, but practicing lawyers quickly learn that it is not all glamour. The reality is that a career as a lawyer includes ups and downs. How you deal with the pressures of practice can determine your success as well as your ability to stay healthy and happy and help you avoid mistakes that can prove costly. Lawyers can do several things to prevent or reduce the anxiety that comes with the job, but they must be able to step back and assess what’s going on. Ask yourself the following questions:

• Do you enjoy your work?
• Do you like being a lawyer?
• Do you ever regret becoming a lawyer or wish you did something else?
• How do you manage your stress?
• Do you worry about things you can’t really control?
• Do you make sure you balance your professional and personal lives?
• Do you exercise or have hobbies outside of work that give you pleasure?
• Do you take vacations?
• Do you leave your work at the office or bring it home with you?
• Are you good at prioritizing tasks and maintaining focus?
• Do you enjoy being around coworkers, staff members, and other lawyers?
• Do you appropriately delegate, to help take some pressure off yourself?
• Are you involved in any community organizations that give you pleasure?

If you need help coping with the stress of practice or other issues affecting your ability to practice, contact the State Bar’s Wisconsin Lawyers Assistance (WisLAP) program. WisLAP offers confidential, 24-hour assistance through its Hotline, (800) 543-2625.

Conclusion

Practicing law can be very fulfilling and satisfying, but it also contains potential pitfalls. Be aware of the hazards and take the necessary steps to avoid them. As the saying goes in the malpractice insurance world, “Even good lawyers make mistakes.” All lawyers occasionally make mistakes, but the better your practice management procedures are, the less likely you are to commit malpractice.