Top 10 Tips to Help Avoid Trouble

As an attorney and mediator who specializes in professional liability cases and issues affecting lawyers and their firms, I’ve learned that while the fact patterns and circumstances of every case are different, even the best lawyers can make mistakes. The dynamics of professional liability practice have taught me how to anticipate and try to prevent mistakes.

With that in mind, here are my “Top 10” tips to help you avoid legal trouble as a practicing attorney:

1. Know the Rules: Most lawyers do not know that the Georgia Supreme Court revised 28 of the 61 Georgia Rules of Professional Conduct back in November 2011. Remember, there have been rule updates since that time that affect your everyday practice.
2. Plan for the Worst and Hope for the Best: Protect your assets with sufficient insurance, succession plans, wills, trusts, and estate plans. Have your personal and professional policies reviewed: annually upon renewal; when you choose practice areas; when you add or remove employees; when the value of your engagements increases or decreases; and upon retirement, disability, or death. Consult a lawyer or firm with a practice focused on succession planning and asset protection for legal professionals.
3. Know Thy Clients: Before you take on a new client, ensure you have a thorough understanding of who that client really is, and identify the proper client in your engagement contract. Meet clients prior to undertaking representation, find out their motivation for hiring counsel, and listen closely to their responses. Watch for warning signs and red flags, such as an improper purpose for hiring counsel, financial inability to retain legal counsel, reluctance to listen to counsel, or questionable business ethics. Trust your instincts—the value of the engagement declined may far outweigh the value of the engagement undertaken.
4. Copy Thy Clients: Send your client a copy of what you receive and a copy of what you send out. When you do this for every communication, no commentary is necessarily required for the transmittal. Timeliness is critical so your client can make informed decisions. Remember that you can always follow up with an explanation letter or phone call after the client has had time to review the communication. For important decisions based on a document sent to the client, follow up with a decision-confirming letter or email to memorialize that decision, thereby minimizing the chances of “buyer’s remorse.”
5. Communicate Early and Often: ALWAYS put it in writing. This is especially important when developing, declining, or ending client engagements. Clear engagement letters should define the start point, objectives, scope of work, payment terms, file retention policies, dispute provisions, and the endpoint (disengagement letter). If the “beginning” never occurs, issue non-engagement letters. Remember, some people consider one visit to an attorney’s office enough to establish an attorney-client relationship, while others believe that your duties to them continue beyond the conclusion of the case or engagement. Even if the client is a repeat business client, send a matter conclusion confirmation letter, which welcomes the client to retain you for future matters.
6. Track Everything: This includes documenting all events, to-dos, and deadlines with a proper calendaring tool. Not only is this a good general business practice, but in the event of a problem, this documentation will help confirm that you met your professional obligations. Be aware that most errors and omissions (E&O) policies require calendaring systems with backup functionality. Technology is great, but it may not be enough unless your data is adequately backed up and retrievable.
7. Don’t Try to Please Everyone: Most lawyers have an innate desire to help all potential clients who seek their legal advice. Beware of all legal, business, and personal conflicts—yours and others. Give your potential, current, and former client relationships a fiduciary “sniff test” to ensure that you can place their needs and interests above all others. Practice management software can be helpful in performing conflict checks. When confronted with a potential conflict situation, consult the revised Georgia Rules of Professional Conduct 1.7 – 1.9 and the Comments to those rules. If you are still confused, call the State Bar of Georgia’s Ethics Hotline (404-527-8741) and/or seek an opinion from practice-focused counsel.
8. Report Every Incident and Claim: Consider informing your E&O carrier of every potential claim, no matter how trivial or meritless you believe it is—or risk being completely exposed. Some carriers say that merely reporting a potential claim will not affect premiums, while others see the reporting of a claim or incident as being a material change in risk that may affect your future premiums. It really doesn’t matter, though, as you must report it now or later on your renewal application. Your carrier can also be a valuable resource to provide insight into methods to mitigate the risk of potential claims and grievances. Review your policy and pay particular attention to the timeframe in which you must report an incident or claim.
9. When in Doubt, Seek Out Professional Advice: It’s your choice—two hours of upfront professional advice now, or potentially two or more years of time-consuming litigation later. Which do you prefer? Never cut corners, no matter how trivial they may seem. Apathy, procrastination, and laziness will only bring professional trouble.
10. Do Not Try to Hide Your Mistakes: This applies to your clients as well as your insurance carrier. Consider reporting to your carrier first and then seek guidance on client disclosure. Don’t compromise your coverage by making improper disclosures. If your carrier cannot be notified of a problem before notifying your client, then notify the client of the possible error without admitting liability. Also, advise clients of their right to obtain independent counsel, and then notify your carrier without further delay. Playing ostrich by sticking your head in the sand and avoiding the inevitable will only increase your anxiety, your risk, and your potential for exposure.

Keep these principles at the forefront while working with clients and managing your practice, and you will help minimize risk to your law firm, both now and in the future.

*This article was originally published in the Daily Report and is reprinted with permission; it was excerpted from Douglas Chandler’s book, Minnows and Sharks: Lawyers’ Quick Reference Guide for Reducing Risk and Avoiding Trouble.