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A Happy Client a Day Keeps the Malpractice Suit Away

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By Jonathan R. Tung, Esq. on April 01, 2016 6:58 AM

Malpractice is the potential danger to every attorney that should be regarded with deadly seriousness. If you're a rash go-getter, this can both be good and bad for you. Your personality can be good at the negotiating table in pushing up settlement figures for your client. But it can also have a tendency to make you arrogant and flip. Such lawyers tend to also run legal-mills.

Know this: only dissatisfied or unhappy clients sue you for malpractice. You became an attorney to sue others, not get sued yourself. So take the time to polish up your best practices guide with regards to handling and treating your clients with kid gloves. Sometimes, prevention is can be your best bet.

Prophylaxis: That's Preventative Measures to You

We said it above, but we'll underscore the point here. Clients are much less likely to sue you if they're happy.

As the lawyer, your goals should parallel the client's goals. In fact, it's easier to think of it this way. The main difference between a lawyer and a layman is that the lawyer knows the procedure to get things done and has earned the license to represent others who don't know the procedure. In this way, your goals should ideally be exactly the same as the client's even if the client's goals are hair-brained -- you have no choice.

If there is a disconnect, the client and the lawyer will end up unhappy along the way. Take the steps to prevent that sort of thing from happening:

1. Fee Agreements and Scope: Explain to the client clearly and in writing the purpose, scope of representation, fees and billing schedules. Obtain their IWC -- Informed Written Consent.

2. Communicate and Maintain Composure: Most malpractice begins with a lack of clear communication. Maintain weekly contact with the client with status updates. You can't make decisions for your client.

3. Maintain Realistic Expectations: A lot of attorneys make the mistake of psyching the client into believing they can win the moon. This is unprofessional and potentially hazardous for reasons that should be obvious.

4. Expect the Best From Support: Support staff should be taught courtesy, professionalism and respect. This will foster in the client's mind a notion that you know what you're doing and that the case is moving smoothly.

5. Document all Correspondence: Keep and archive all correspondence between you and the client. This one is very difficult to do, we know. But if you can feel the client becoming more bellicose, you should be doing this.

If Worse Comes to Worse

If a malpractice suit looms, then you can thank yourself for keeping such diligent records -- right?

It is a fair statement to say that a fair bit of professional life is CYA. Some clients may have come to you emotionally charged and are just itching to fight. Let's say you made the mistake of agreeing to represent them and now you're unjustly the new and most immediate target of their wrath. Document everything. Do not record everything because that may run afoul of your jurisdiction's privacy laws. If you work in a firm and your coworkers are bound by firm confidentiality, then try and get witnesses. Sure, they're not the best witnesses because of their obvious bias, but at least you won't have hearsay problems.

In the end, few clients really want to sue their attorneys. But you can help yourself by making it harder for your clients to sue you by maintaining a friendly relationship with them. It's hard to sue your friends because of a sense of guilt, right? If best practices can't help your dodge a malpractice claim from disgruntled client, then you might have to rely on your charm to get you out of that bind.

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