8 Tips To Avoid Legal Malpractice Claims

On November 19, I gave a speech to a joint meeting of the Austin Bar Association’s Solo and Small Firm and Women’s Lawyer Sections. Part of that speech was 8 ways to avoid legal malpractice claims, and I’ve been asked by one of the attorneys in attendance to post those tips here. I can’t repost the entire speech, but the brief summary is as follows:

1. Define who you represent. When multiple parties are involved, make it clear who you are and are not representing.

2. Define the scope of the representation. You need to tell clients what matters you are representing them on, and if applicable, what matters you are not providing advice on.

3. Define when the representation ends. If you accept representation, you need to send a letter when the matter is closed letting the client know that you will not be taking any more action on their behalf. Similarly, if you decline representation, send a non-engagement letter letting them know that you will not be representing them.

4. Communicate! Communicate! Communicate! The number one cause of grievances is that lawyers don’t communicate with their clients. You need to communicate with your clients. And when you do communicate, do it effectively. People don’t want to sue those that they like. If your clients know that you care about them, they will be much more forgiving of any errors you make.

5. Say “I’m Sorry.” If you make a mistake, you have an obligation to tell your client, and in the process, let them know that you’re sorry. A simple apology goes a long way to reducing legal malpractice claims.

6. Have a calendaring/deadline system that works. Missed deadlines may be the number one cause of legal malpractice claims. Have a system that reminds more than one person in the office about deadlines and make sure you calendar the proper deadlines in matters.

7. Think twice about entering into a business deal with a client. Not only are these deals regulated by the disciplinary rules, but if the deal goes bad, there is a presumption that the transaction was not fair to the client.

8. Think twice about suing clients for fees. A grievance or legal malpractice counterclaim is almost a guaranteed result.

I hope this is helpful, and I’d be interested in hearing others’ thoughts on this matter.

Posted on: November 29, 2008 | Tagged

An Attorney Stealing From Clients

Louisville lawyer Hans Poppe reports today on a Louisville lawyer that has been accused of stealing from his clients.  Most notably, a $1 million estate seems to have disappeared.  Unfortunately, Mr. Poppe appears to think the case may be an example of what we consider the #1 rule of legal malpractice cases:  the attorney’s culpability is inversely related to his or her ability to pay a judgment.  There are exceptions to this, of course, but as long as bar associations don’t require attorneys to either (1) carry malpractice insurance or (2) disclose to clients that they don’t carry insurance, then unwitting consumers will always be faced with the prospect that they’ll be stuck when they are the victims of legal malpractice.

I know some lawyers disagree, but I strongly believe that lawyers have an obligation to their clients to carry malpractice insurance in case the lawyer makes an error.

Posted on: November 17, 2008 | Tagged

A Law Firm Sued 22 Times?

The Poppe Law Firm (who I thought were Louisville personal injury attorneys) have another great legal malpractice post.  This time, the post describes an Augusta criminal law firm that has been sued for legal malpractice 23 times. I won’t detail the post, but it’s worth a read.

On a similar topic, we have previously posted on Texas legal malpractice claims in the criminal context.

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New Products Liability Studies

Separate researchers are each releasing new reports today that discuss the importance of the civil justice system in the context of product liability claims.

Professor Andrew Popper from American University, Washington College of Law, released Defective Foreign Products In The United States. Professor Popper looks at the disturbing number of defective products that enter the United States from foreign manufacturers and how the liability system can effectively deal with those manufacturers. He concludes:

If foreign manufacturers continue to be outside the jurisdicitional reach of domestic courts, it is inevitable that plaintiffs will be left without recourse.  Foreign manufacturers who sell goods to be purchased and used in the United States ought to bear responsibility when those products fail, much the same as U.S. manufacturers.  Among other things, it is simply unfair to U.S. manufacturers to bear full responsibility for product failures when their foreign competitors can be relieved of liability solely based on the fact that they are located outside the United States.

Foreign manufacturers transgress the most basic product liability duties of care imposed on every domestic manufacturer:  to exercise reasonable care in designing, manufacturing, labeling, and warning.  Thousands of recalls send an unequivocal message.  Yet foreign manufacturers are in a preferred position.  They are both shielded by domestic tort reofrm and protected by complex and uncertain constitutional, common law, and statutory doctrines that produce the curious jurisdictional puzzle set out in this paper.  And yeet, their liability is nominal at best.

The second study, The Social Costs of Dangerous Products – An Empirical Investigation, takes a look at the costs of defective products. It does this by using case studies of Ford SUVs with Firestone tires, all terrain vehicles, and the prescription drug Baycol. The authors conclude that these three drugs alone cost nearly $4.7 billion in medical costs, lost wages, and other costs, excluding the cost of pain and suffering and other extended costs.

I think these issues are critical when talking about protecting American families and consumers.  I know that I’m probably a little biased, but I fail to see how any reasonable person can look at what the Food and Drug Administration, the Consumer Products Safety Commission and other regulatory bodies are doing and conclude that their oversight alone is enough to protect us.  And yet, that’s exactly what some people seek.  I don’t think it’s enough.  I think the tort system provides a very important piece to the puzzle to help protect us all.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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