Dealing with malpractice and ethics complaints

No matter how good of a lawyer you are, you may not have adequate systems in place to help you avoid a malpractice claim or ethics complaint. If your practice has experienced significant growth either in volume or practice area mix and/or you have experienced some turnover in staff, you may want to take a look at your practice systems and organization. A periodic review of your procedures and systems may be warranted to insure that you are taking the necessary steps to avoid malpractice claims and ethics complaints. What areas should reviewed? The ABA Standing Committee on Lawyer’s Professional Liability’s publication, The Lawyer’s Desk Guide to Preventing Legal Malpractice, identifies the following "administrative" areas that give rise to malpractice claims: 1) missing deadlines, 2) miscommunication between attorney and client, 3) taking "bad" clients, 4) insufficient file documentation, 5) lack of familiarity with ethics rules, 6) failure to act promptly in response to a potential malpractice claim, 7) conflict of interest issues and 8) suits for recovery of fees.

Do you have a policy for dealing with clients who have become unhappy with the level of service they are receiving or with their representation? If not, you should consider establishing a policy for the firm. In addition, put it in writing and make sure everyone in the firm has a copy of it and abides by it. You should consider the following suggestions in formulating your policy:

1) Be responsive. Instruct staff to be empathetic with an unhappy client caller, to take a detailed message, reassuring the client that someone will soon get back to them about their concerns.

2) Notify the responsible lawyer immediately. Calls from unhappy clients should be immediately returned by the responsible lawyer for the client file or the lawyer in the firm responsible for handling dissatisfied clients. If a lawyer delays in returning the unhappy client’s call, the next call the client may make may be to the Board of Professional Responsibility.

3) Face-to-face meeting with the client. If possible, a face-to-face meeting with the client should be scheduled to discuss the concerns and issues the client has as to their representation and service received. The client’s file should be documented as to the concerns expressed and any agreement as to how those concerns will be addressed by the firm.

4) Withdrawal. If the client’s concerns cannot be adequately addressed by the lawyer or the firm, the lawyer may need to suggest that the client consider obtaining other counsel and take the necessary steps to withdraw from the case in compliance with Tennessee’s Code of Professional Responsibility, Disciplinary Rule DR2-110. Again, the client file should be adequately documented.

5) Client surveys. To nip a potential problem in the bud before it becomes a real problem, give clients a chance to "vent" any frustrations they experience during representation via a client survey. Be sure to respond to the comments received on any surveys that clients take the time to complete and return.

6) Prompt reporting of a potential claim. Finally, be familiar with your obligation to promptly inform your malpractice carrier as to any potential claim. Check your malpractice policy as to your duties to report a claim or potential claim to your insurer.

Did you know that you need to accurately reflect on your malpractice application the percentage of time you spend in each of the areas in which you or your firm practices? Why? Well, it may affect your premium. The malpractice provider ANLIR tracks claims by the Area of Practice which gives rise to those claims. According to an article in the most recent Today’s Lawyer, a quarterly publication by ANLIR, every carrier’s rating structure reflects the discrepancies between the percentage of claims which arise in various practice areas. Therefore, ANLIR advises you to be sure to accurately estimate your firm’s speciality areas on your malpractice application.

How do you do that? There are a couple of ways. If your time and billing system is automated, there is most likely a "field" in the new client entry screen where you can indicate the type of practice area for that client. Typically, time and billing software applications arrive with some default practice area categories and codes and you most likely can also edit the list to more accurately reflect your practice. At policy renewal, print a report of hours worked by practice area and determine the percentages from that report.

If your time and billing system is not automated, you could post your fee receipts by practice area on the income statement of your firm accounting system. In other words, instead of posting all receipts to a category such as "fee revenue," set up subcategories under "fee revenue" for "personal injury", "real estate", "domestic", etc. Post receipts to these categories so that at the end of the year you can see what percentage of firm revenue is attributable to each practice area. Basing the estimate of the percentage of time your firm spends in each area of practice on fee receipts versus hours worked may not provide you an accurate picture of your practice area mix; but, it is better than guessing.