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Archive for the ‘Ethics & Professionalism’

The top 10 things you can do to avoid a legal malpractice claim

November 30, 2010 By: Dan Category: Client Service, Ethics & Professionalism

In most areas of law practice, lawyer/client communication problems are the number one cause of claims, followed closely by deadline and time management issues. Together they typically account for more than half the malpractice claims LAWPRO sees. Failures to know or apply substantive law typically account for about 10% of claims. See The Biggest Claims Risks article for more detail about the most common malpractice errors.

So, while knowing substantive law is important, from a claims prevention point of view you get more for your risk management efforts by focusing on improving client communications and focusing on getting things done on time. With this in mind, here are my top tips for avoiding a malpractice claim:

  1. Start out on the right foot with a written retainer: The retainer letter or agreement is your terms of engagement. It should clearly identify who the client is and what you are retained to do.
  2. Get the money up front: At the time you are retained, get a retainer that is sufficient to cover all initial work that needs to be done on the matter. Replenish retainer funds before they are exhausted (set up your accounting system to monitor and remind you when the amount in trust is getting low). Stop working on the file if the retainer is not replenished – working on credit greatly increases the likelihood you will not get paid for your work. Of course, you can and should do pro bono work, but only when you choose to do it.
  3. Control client expectations at all times: Clearly and accurately communicate to your clients the available courses of action and possible outcomes; all the implications of any decisions; how long thingswill take; and the expected fees and disbursements.
  4. Document everything (almost): It is just not practical to document everything on everymatter, but you should document asmuch as you can in some contemporaneousmanner. Letters are fine, but e-mails, detailed time entries, andmarginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes, and major client instructions or decisions. Documenting things is especially important when you are dealing with difficult or emotional clients.Memorialized communications help confirm what was said or done for the client in the event you ever need or want to look back to explain why or what work was done, to justify an account, or to defend yourself on a malpractice claim.
  5. Meet or beat deadlines: Set realistic deadlines when it comes to completing tasks and/or delivering things to clients. Underpromising and over-delivering (i.e. earlier than promised) on work for clients will make them very happy. Don’t leave things to the very last minute as unexpected events beyond your control (blackouts, snowstorms, taxi got lost on way to file documents) will prevent things from happening as required. Giving yourself an extra day or two by setting your deadline before the real deadline can be a lifesaver.
  6. Don’t do any of the things that most annoy clients: These are all the things that would equally annoy you. They include not returning calls or e-mails, long periods of inactivity, surprising a client with bad news or a large account.
  7. Don’t handle a matter with which you are uncomfortable: If you are unsure or hesitant about handling thematter for any reason (e.g. unfamiliar with the area of law, a potential conflict exists, matter for a relative or friend, demanding or difficult client), get appropriate help or refer it to another lawyer.
  8. Don’t wait until after the file is closed to ask how you did: Ask clients for feedback as thematter progresses, atmilestones or when interim accounts are rendered. Talk to major clients at least once a year, and do this off the clock!
  9. What goes around comes around: Your reputationwill precede you. Be civil all of the time, to your client, the counsel and client on the other side, judges and court staff.
  10. Send interim and final reporting letters: They should confirm what work was done, and the successes obtained for the client. For example: For example: Retainer terminated, futures steps, and so on.
  11. Don’t sue for fees: This almost guarantees a counter-claim alleging negligence.
  12. Document everything (almost): Read #4 again – it is the best way to avoid a claim.

Doing all these things will help you avoid the most common malpractice errors and ensure you have happy clients. And remember, happy clients don’t tend to sue their lawyers.

Cross posted on Slaw.ca and Lawyer Success Tips

Unbillable Hour Podcast Highlights Our 2010 Success Resolutions on Legal Talk Network

January 22, 2010 By: Reid and Dan Category: Announcements, Client Service, Ethics & Professionalism, Firm Management & Operations, Fraud prevention, Making (more) Money, Marketing and Client Development, Wellness and balance

We are big fans of the UnBillable Hour podcast on the Legal Talk Network so we were really pleased that podcast host Rodney Dowell, director of the Massachusetts Law Office Management Assistance Program, asked us to be his guests this month to expound on our Top Ten Tips for a Successful 2010 we blogged on New Year’s Day.

Take a listen to the podcast, that also features Judd Kessler of AbacusLaw, and take in our tips in a whole new way.

The Busy Lawyer’s Top Ten Tips for a Successful 2010

January 01, 2010 By: Reid and Dan Category: Client Service, Coping with E-mail, Ethics & Professionalism, Fraud prevention, Making (more) Money, Marketing and Client Development, Strategy & Planning, Technology, Wellness and balance

The start of a new year is always a time for reflection and renewal-out with the bad and in with the good. In our book, we highlight several resolutions every lawyer should make for a safe and profitable new year. We have updated those resolutions for 2010 to include several more tips specifically to shake off the blues of 2009 and make the coming year your most successful ever!

1. Lawyers are being targeted on bad check frauds in record numbers – be alert and don’t be duped: Fraudsters posing as clients on collection matters, business finance or mortgage loans are targeting lawyers. The ruse is simple: trick lawyers into running counterfeit certified checks or bank drafts through their trust accounts. The fraudster gets legitimate funds and the lawyer is left with a shortfall-often six figures! Take 20 minutes to learn more about these scams and what you need to know to prevent them from happening to you.

2. Spend time learning LinkedIn. Facebook and other social media tools. These social networks are fast emerging as sources of new business. Create a profile, search for connections/friends, and post regularly about your practice and your professional life. If you are familiar with these networks, spend time to learn their power in more detail, or expand to other networks, such a Martindale-Hubbell Connected (Beta) or LegalOnRamp. The December 2009 issue of LAWPRO Magazine is a good social media primer as it has articles on the different social networking tools, how to use them to market yourself, and the dangers you need to be aware of when using them.

3. Book a vacation now! Everyone needs some downtime. Grab your calendar and block off two weeks together or two one week blocks. (Health experts say a 2-week vacation is best.) Get your spouse, partner or significant other to block the same dates off in his or her calendar. Those dates are sacred – don’t book anything in them. If you don’t block them off now and keep them clear you will never get the holiday your mind and body needs.

4. Resolve to improve client service and don’t do any of the eleven things that annoy clients the most: How many can you name? Don’t read the next paragraph – close your eyes and see how many you can come up with.

OK, how did you do? Here’s our list:

* Not returning phone calls.
* Not replying to e-mails.
* Making clients wait in reception.
* Ignoring client/staff incivility.
* Dropping names to impress others.
* Not clarifying for the client.
* Not delivering on promises of performance.
* Not delivering on a promised outcome.
* Not communicating during long periods of inactivity.
* Failing to be prepared.
* Sending a very large bill without warning or explanation.

See an excerpt from our book for more on the 11 biggest client annoyances, and more importantly, what you can to do avoid them. Applying the tips featured in this excerpt will help you have happier clients, and even better, reduce the likelihood you will face discipline complaints and malpractice claims.

5. Recognize the growing need for bi-lingual legal services. Consider language classes at a community college or consider popular software just to start. The world is changing, those that greet the changes will be the most successful.

6. Connect with your peers: Join the ABA Law Practice Management Section or the ABA GPSolo Division to get the best information on developing or fine-tuning your law practice. Also, join your state bar Solo and Small Firm Section to increase your networking opportunities. If your state bar does not have one, start one!

7. Don’t just say you will start a marketing plan this year–do it! For yourself and for you firm. While marketing efforts are always welcome, shotgun efforts really are inefficient. We recommend the practical and realistic plan outlined in our book as a great place to start. To keep your marketing momentum, make appointments for yourself each week throughout the year–written on your calendar now–to implement all parts of your plan.

8. Evaluate your fee structure and retainer requirements. Are you asking clients to pay for value or results? Is your message “We’ll do your last will and testament, trust, power of attorney, and medical directive for X dollars, rather than “We can protect you, your family and estate from government intervention, taxes, and most family squabbles for X dollars? Turning the discussion from “price for paper” into a discussion of “price for value” is more effective in convincing clients to hire you. Analyze, revise, and practice incorporating this new approach into your discussions with clients.

9. What is the one thing you would like to change about yourself? We all have our personal shortcomings and foibles. Some of them are small, some of them are big. Pick one things that you would like to change or improve in your personal or professional life. Write it down on a piece of paper – and then write out the steps you need to take to make the changes you want to make. This is your path to make one significant change to improve yourself over the next twelve months.

10. Buy our book – The Busy Lawyer’s Guide to Success: Essential Tips to Power Your Practice. If you like the short tips format and content of the above tips, you will love our book. It contains more of the same – almost 75 collections of ten or so tips on client service, marketing, strategic planning, business process improvement, technology-all targeted to help busy lawyers be even more successful. We guarantee it will contain at least one tip that earns back your purchase price.

We wish you a happy and successful 2010!

Dan and Reid

The Fearsome Foresome of Malpractice Pitfalls

December 28, 2009 By: Reid Category: Ethics & Professionalism

The ABA Journal just published an insightful article on what malpractice claims experts commonly refer to as the “Fearsome Foresome” of practice areas–plaintiffs personal injury; real estate; family law; and estate, trust and probate. One of the experts quoted in the article is Busy Lawyer author, Dan Pinnington.

A notable aspect of that pattern is that, regardless of size, “all firms seem to make the same types of errors,” said Daniel Pinnington, a speaker at the ABA National Legal Malpractice Conference in September. “People make mistakes and systems break down, in the same ways regardless of firm size.”

The article highlights an emerging trend that should be sobering to all lawyers: As the economy has worsened, plaintiffs are trying new and unique theories to sue lawyers for malpractice.  We need to be more vigilant than ever to make sure the quality of our work and client relationships does not give rise to these new novel theories. The good news, according to the article, is that

[E]ven with clients becoming increasingly hungry for recoveries against their lawyers when cases don’t turn out their way, many claims can be avoided. Pinnington said 10 years of data for claims handled by his company for lawyers in Ontario indicates that, overall, errors in communication with clients are the leading cause of malpractice claims—followed by missed deadlines and procrastination, followed by inadequate discovery or investigations of fact (AKA not digging deep enough to make sure key issues for client are recognized and dealt with) .

There is no coincidence that many of the tips in The Busy Lawyer’s Guide to Success: Essential Tips to Power Your Practice are aimed at better client communication, improving workflow management, and malpractice avoidance techniques. The goal of our book is to make sure lawyers not only stay out of trouble, but have more effective, efficient, and profitable practices.

Free MP3 of LAWPRO’s Special Webinar: Fraud-How You Can Avoid Being Its Next Victim

July 17, 2009 By: Dan Category: Announcements, Ethics & Professionalism

On May 26 LAWPRO put on a special webinar aimed at helping lawyers to avoid being the victims of fraud. It was hosted and broadcast by the Ontario Bar Association.

You can now listen to a free MP3 of this program, and follow along with the program PowerPoint.

While frauds targeting lawyers have not been widely reported in the US, they are clearly happening and US lawyers need to be on the lookout. Fraud is a real and growing problem for Ontario law firms and lawyers. Prior to the May 24 holiday weekend, we saw an apparent organized fraud that targeted 19 different lawyers for a total amount of $5.4 million. We continue to get almost daily calls from lawyers that are finding themselves in the middle of handling a matter that is clearly, or appears to be, a fraud. And all too frequently we see situations where fraudsters successfully “trick” lawyers and law firm staff, in practices large and small, into helping make a fraud happen. These claims have been costly for LAWPRO.

How can you protect yourself and your firm from being a victim? This webinar will help you become familiar with the common fraud schemes and scenarios, recognize the “red flags” of a fraudulent deal, and show you the steps you can take to lessen the likelihood you will be a victim of fraud.

I moderated the program, and two of my fellow LAWPRO employees were the speakers: Rosanne Manson, Claims Counsel, and Lisa Weinstein, Director, National Underwriting Policy, TitlePLUS.

The topics covered in the webinar include the following:

  • Why fraud is a concern
  • Current fraud trends and claims numbers
  • The common fraud schemes and scenarios
  • The types of bad cheque fraud
    • Commercial loan matters
    • Collection matters
  • The different types of real estate fraud
    • Identity theft
    • Power of attorney fraud
    • Value fraud
    • The role of title insurance
  • Red flags for a problem client or transaction
  • How to protect yourself and your clients
  • Internal fraud: when trusted staff go bad
  • What to do if you think you are about to be victimized

Listen to the MP3 of the program and follow along with the program PowerPoint.

Please also download and share with your staff LAWPRO’s new Fraud Fact Sheet for a more complete list of the specific red flags to look out for on the various types of fraudulent matters.

There are even more resources on fraud prevention on practicePRO’s fraud page (www.practicepro.ca/fraud).

Cross-posted on SLAW

Don’t Miss An Important Message Or Bulletin: Please Whitelist Your Bar Association, Insurer (And Anyone Else Important!)

May 12, 2009 By: Dan Category: Coping with E-mail, Ethics & Professionalism, Technology

Last night I posted on the SLAW.CA blog about a fraud warning my employer (malpractice carrier LAWPRO) sent to the 20,000 lawyers in private practice in Ontario. There is an important lesson to be learned from our e-blast.

We have received more than a dozen calls and e-mails from lawyers further to the fraud warning blast we sent out Monday afternoon this week. Thankfully, that e-mail blast prevented most of these lawyers from being victims of a bad cheque fraud.

However, two of the lawyers who called didn’t get our message because their Spam filter caught our e-blast. One happened to call us for advice on how to handle a suspicious transaction further to articles he had read in past issues of LAWPRO Magazine. The other just happened come across our message when he checked his Spam filter this afternoon.

The lesson: Spam filters aren’t perfect. They sometimes catch legitimate messages – these are called false positives. Please whitelist your Law Society, malpractice carrier and anyone else that you really need or want to get messages from. And on a regular basis please check your Spam filter for messages that should not have been caught by it. It could save you from a malpractice claim.

I did mention this point at the end of my SLAW post last night, but felt that it warranted a post of its own here to make sure people get this important message. No doubt, LAWPRO will get calls next week from lawyers that were victims of this fraud because they didn’t get our e-blast warning messages.

The Busy Lawyer’s Guide to Success Excerpt Featured on ABA Books Blog and Twitter: Eleven Things That Annoy Clients the Most

April 20, 2009 By: Reid Category: Client Service, Ethics & Professionalism

A first for our book: The Busy Lawyer’s Guide to Success: Essential Tips to Power Your Practice has hit the Twittersphere as of this past Friday via ABABookBriefs and the ABA Book Briefs Blog. Web 2.0 is cool!

The post featured one of our favorite collection of tips, “Eleven Things That Annoy Clients the Most.” How many can you name? Don’t read the next paragraph – close your eyes and see how many you can come up with.

OK, how did you do? Here’s our list:

  • Not returning phone calls.
  • Not replying to e-mails.
  • Making clients wait in reception.
  • Ignoring client/staff incivility.
  • Dropping names to impress others.
  • Not clarifying for the client.
  • Not delivering on promises of performance.
  • Not delivering on a promised outcome.
  • Not communicating during long periods of inactivity.
  • Failing to be prepared.
  • Sending a very large bill without warning or explanation.

See the excerpt for more on the 11 biggest client annoyances, and more importantly, what you can to do avoid them. The excerpt will show you our editorial philosophy: short, practical, valuable nuggets of information without the fluff.

Applying the tips featured in this excerpt will help you have happier clients, and even better, reduce the likelihood you will face discipline complaints and malpractice claims.