malpractice: know when to say no

MALPRACTICE: Know When to Say NoAuthor(s): DUKE NORDLINGER STERNSource: ABA Journal, Vol. 73, No. 9 (JULY 1, 1987), pp. 54-56, 58Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759398 .

Accessed: 12/06/2014 22:32

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

This content downloaded from 194.29.185.216 on Thu, 12 Jun 2014 22:32:30 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=aba

http://www.jstor.org/stable/20759398?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


MALPRACTICE

Know When

to Say

No

BY DUKE NORDLINGER STERN The best way to protect yourself

from malpractice claims is to qualify your clients?to look

into who they are and what they want before you agree to represent them.

Lawyers who have been sued for malpractice often feel that they could have avoided a suit if they'd given more thought to the client or the case before agreeing to the representa tion. Qualifying clients before ac cepting retainers also can help you avoid frivolous malpractice claims.

Watch for the following red flags:

The client who has to wait. You need to see a doctor. When

you call for an appointment you are put on hold several times and when you finally get through, the secretary makes no attempt to fit the appoint ment into your busy schedule. You arrive at the clinic on time but have to wait 45 minutes to see the physi cian, who offers no apology for the inconvenience.

You are upset?and understand ably. The foundation for a poor phy sician-patient relationship has been laid. The same thing can happen in a law firm. Making a client wait invites dissatisfaction. Don't keep people waiting. The client who does not under stand your billing procedures.

Clients want to know how much you charge. Many will hesitate to

Duke NorcUinger Stern, a lawyer in St. Petersburg, Fla., is a

professional liability risk manager. Heisa member of the ABA Committee on Lawyers' Professional Liability and is a certified management consultant, systems professional and association executive.

1- -.-_I

54 ABA JOURNAL / JULY 1, 1987



bring up this important subject, how ever, so you should encourage a de tailed discussion of your fee and your firm's billing procedures. This discus sion can tell you whether a potential client is fee shopping or likely to cause problems if your final statement ex ceeds the anticipated amount. The client who cannot be satis fied.

Some clients will always be dis satisfied with their lawyers. And there are others who have been dis illusioned by bad experiences with the legal system.

You should ask whether the po tential client has had previous rep resentation. How does he feel about those experiences? What, if any thing, caused him dissatisfaction? Does he have a history of changing counsel? The answers may indicate that you should decline the represen tation (in writing).

The client who does not under stand the legal system.

People who have little or no ex perience with the law may not un derstand how long it takes to resolve matters or what procedures must be followed. Qualification can deter

mine the individual's legal sophisti

When You're the Client

The most important thing you can do to help your malpractice defense is to pick a good lawyer, says San Francisco malpractice expert Ronald Mallen. Then, he advises, put yourself in his hands and don't try to direct the defense.

Mallen, who has defended more than 2,000 attorneys on malpractice claims, says that almost all of his clients are cooperative. Litigators are good clients, says Mallen, because they "understand that their lawyer has to decide the strategy and coordinate the defense."

In fact, says Mallen, immediate past chairman of the ABA's Committee on Professional Responsibility, litigators are often timid about volunteering suggestions because they don't want to second-guess their counsel.

Occasionally Mallen has problems with business lawyers

who don't understand the litigation process and want to run the show. "They do too much. They really want to get involved in the formation of the strategy."

Another problem client is the one who "is out to get vengeance," says Mallen. Hurt and upset by the injury to their professional reputation, they tend to personalize the litigation. "They have to remember that they're using a professional for his skills."

A malpractice defense lawyer can avoid these problems, Mallen says, if he makes it clear that he knows what he's doing. "Control is the key. This means showing the client that you are skilled, knowledgeable and confident."

The lawyer who can't meet these expectations is going to have trouble, Mallen says, because "lawyers not only appreciate good legal work, they demand it."

?Stephanie Goldberg

ABA JOURNAL / JULY 1, 1987 55



cation and how much effort should be devoted to filling him or her in. Do not ignore this important aspect of serving your clients.

The client in a hurry. Although the time required for

resolving particular legal problems can vary, there is a range in which you can perform effectively. While you might be able to satisfy the time demands of a potential client, you can't afford to forget that he also wants results.

If you conclude that a satisfac tory result cannot be achieved within his time demands, you shouldn't take the case. Punctuality won't excuse a

shoddy performance. The client seeking reinforce ment.

Some people enter an attorney client relationship with unrealistic expectations. In the qualification stage, see if your client expects more than he or she is likely to receive. If so, you must set the client straight or decline the case.

The client whose attitude is too positive.

Most attorneys would prefer a client with a positive attitude toward his case. But some people are so op timistic that they won't acknowledge the possibility of lesser or alternative outcomes. This predisposition should be explored during the initial inter view. Unless results can be guaran teed?and rarely is this possible?you should list all possible outcomes in your engagement letter. As the case advances, be sure to advise your client in writing as to any changes.

The strapped client. For some clients a losing case will

bring financial ruin. The client who faces such an extreme situation is likely to appear cooperative and un

derstanding in the hope that you will lead him out of the woods. If the out come does not meet his expectations, however, there is a good chance that he will blame you. If so, a malprac tice claim is likely to follow.

The safest approach is to avoid accepting clients who have extreme

financial difficulties. But your desire . to serve may dictate acceptance of t such a representation, and in these situations you should protect your self by documenting all of your un derstandings, communications and recommendations.

The client with a matter outside your area of expertise.

Dabbling is dangerous. Studies of professional liability claims indicate that lawyers most often get into trou ble when they venture into areas of the law in which they have little or no experience. Unless you are pre

pared to spend the many hours re quired to master a new area, you shouldn't take a case in a field of law you don't already know. The client with a matter that is too big for your practice.

It may be that a client's problem is just too complex. Avoid letting your decision be guided by the possibility of a large fee. If the new matter be comes too consuming you may find | yourself ignoring the needs of your ! other clients.




^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ The initial interview form can be

the focal point of your malpractice prevention activities. First, it serves as a checklist to assure that the at torney or staff person obtains all nec essary information. Second, it's a good way to organize the information you receive.

Third, it can activate other mal practice prevention safeguards by noting, for example, deadlines and conflicts of interest.

It is critical that engagement let ters be sent whenever a new matter is accepted by your firm. These let ters should confirm (1) the nature of the relationship, (2) the general schedule and timing of events, (3) what aspects of the matter, if any, you won't handle, and (4) the specifics of fees and billing.

It's a good idea to attach a copy of the initial interview form to your engagement letter so that your client can make certain it is complete and accurate.

When you decline a case, let the person know it. If the rejection is based on your opinion about the mer its of the matter, that decision should be made only after a careful review of the facts and issues.

On the other hand, if you decline the case for other reasons, explain yourself clearly so that there can be no erroneous conclusion that your decision was based on the merits.

COVER YOUR BASES Another valuable tool in avoid

ing malpractice is a closing letter that confirms what you advised the client during your final meeting. This ad vice should include the admonition to seek additional representation if certain events occur or if the client has trouble satisfying subsequent re quirements.

It is also prudent, although not necessarily exculpatory, to add that you won't assume the duty of re minding the client about deadlines,

or of changes in the law that might affect the case.

Malpractice prevention does not take place in a vacuum. A law firm, attorney or staff member cannot de vote only certain days or hours to avoiding claims. Unfortunately, this is what happens in many instances.

A lawyer or staff person attends a seminar on risk management or reads an article on professional claims and becomes aware of his malprac tice risks. The result is a flurry of pre vention activities that are soon forgot ten in the face of a busy practice.

It's important to realize that a law firm is continuously exposed to acts or omissions that can give rise to malpractice claims. The best way to protect yourself and your firm is to recognize that potential liability be gins even before the acceptance of each new client or matter. A total prevention system should begin at that point and end only after the re lationship is terminated.

When a401(k) plan needs two

professional opinions, SCUDDER More than half of the 401 (k)

plans at Scudder are gener ated by referrals from profes sionals like you. Scudder can be a valuable resource when a client is considering a 401 (k). We offer a complete,

turnkey 401 (k) program built around no-load mutual funds. Whether your client is starting a new plan or simply augmenting their existing investment options, Scudder can help.

Scudder, Stevens & Clark has been a professional money manager since 1919, and now manages over $30 billion. So when a client turns to you for retirement plan advice, it's time to talk to the professionals at Scudder.

Call 1-800-323-6105, ext. 740 today for more complete information including a current prospectus detailing management fees and expenses. You and your client will want to read it carefully before investing. Scudder Fund Distributors, Inc., is the funds' underwriter.

SCUDDER

iiiimlinr. 1

>een a professional ^^^^^iSr

Altman &

Weil, Inc.

Management and Marketing Consultants To The Legal Profession

%_ ALTMAN & WEIL, INC. Management Consultants To The Legal Profession PO Box 472 Ardmore, PA 19003 215-649-4646 ABA/net: ABA 1576 Offices also in IL: 312-665-6868 and CA: 415-254-1921 In London (The David Andrews

Partnership): 01-353-9353




malpractice: know when to say no

Documents