Tips for avoiding common risks in the holiday season

While the holiday season is of course a time for celebration, it unfortunately can also be a stressful time for attorneys. In addition to worrying about year-end collections, attorneys are often faced with a multitude of administrative tasks, and a law firm may additionally be dealing with the unexpected partner departures that often occur around the new year.

Amidst the business pressures, there is a heightened risk for professional liability claims. Below are some common scenarios that can create risk management issues for law firms and attorneys during the holiday season.

Casual Legal Advice

At holiday parties, as soon as a lawyer reveals her or his profession, anyone with a legal issue will inevitably want the lawyer's two cents on the issue. Despite a friendly and casual setting, these questions can create potential risks for attorneys.

First, even casual advice can create an implied attorney-client relationship under certain circumstances. While the attorney certainly may not intend to create an attorney-client relationship when providing off-the-cuff advice, determining the existence of an attorney-client relationship focuses on what the potential client believed.

This inquiry can take into account the setting and circumstances of the advice but, at the same time, an attorney may be viewed as laying the groundwork for an attorney-client relationship at the party. Thus, as a worst-case scenario, an attorney might face a potential malpractice claim if the advice is ultimately unhelpful.

However, even where casual advice may not rise to the level of an implied attorney-client relationship, there can be serious conflicts of interest and client management risks. Consider this example. A partygoer meets an attorney at a party and complains that his landlord is refusing to fix a broken appliance in his apartment. The attorney advises the partygoer to withhold paying rent to the landlord.

After enjoying a carefree holiday vacation, the attorney then returns to an irate message from another partner, noting that a valued client of the firm -- a property manager -- is in a dispute with a tenant based on advice provided by the client's law firm to withhold rent. Although there may not be an attorney-client relationship between the attorney and the partygoer, the attorney may have created a serious business or other conflict as well as a problematic client management issue by providing seemingly innocent advice.

Another common occurrence at holiday parties is that attorneys are often asked questions that go well beyond the attorney's expertise. Even though most attorneys are not well-versed in all aspects of the law, attorneys sometimes choose to opine on specific issues based on what their gut and their general knowledge of the law tells them.

However, while family law, real estate, tax, and trusts and estates all give rise to everyday legal concerns, these areas each can require specialized knowledge and are each among the most common sources of legal malpractice claims. Even when an attorney only offers a "guess" as to the appropriate course of action, an incorrect answer may still create hard feelings or a potential claim.

At the risk of seeming less merry, attorneys asked for legal advice in casual settings should typically avoid doing so. To minimize this risk, potential clients can be informed as to the process by which they can become a client of the firm, if they are so interested. The attorney can also say they are unable to answer the question without knowing all pertinent facts and the applicable law. It's better to be thought a Scrooge than to risk a malpractice claim or a business conflict.

Out-of-Office Arrangements

Taking time off is critical to the mental health of attorneys, and the end of the year is in particular a great time to rest and regroup for another year. At the same time, attorneys cannot neglect the continuing duties owed to clients even if the attorneys are out of the office.

For example, attorneys may need to seek extensions to deadlines or figure out how those deadlines will be met while they are away. Calculating deadlines around the holidays also can be problematic, as a court may be technically open the day before or the day after Christmas, and thus an attorney who overlooks those working days may submit an untimely filing.

The holiday season can also be a time to demonstrate professional courtesy to opposing counsel. In general, creating deadlines that fall over the holidays is disfavored when a more palatable schedule can be negotiated. This can be an opportunity for attorneys to conduct themselves with professionalism and courtesy during the holidays in agreeing to deadlines with opposing counsel.

Help Colleagues in Need

While the holiday season is a time of goodwill and cheer for most, it can be a dark time for those suffering from a mental illness or substance abuse. The practice of law, as a profession, knows higher rates of mental illness and substance abuse than many other occupations. Attorneys need the support of their colleagues to address issues and get help.

The State Bar of California's Lawyer Assistance Program provides confidential assistance to lawyers dealing with a wide range of mental and physical health problems. If you have a concern about a colleague who may need your help, please call 877-LAP 4 HELP (877-527-4435).