Set new habits in 2022

One particularly frustrating aspect of receiving legal malpractice claims is that, in hindsight, some of them could have been avoided through relatively simple risk management steps. Every year, there are lawyers who think that there are certain protections they would put in place if they had time. The new year presents a perfect opportunity for attorneys to reassess their risk prevention practices to avoid or minimize the impact of a claim in 2022. Below are some “resolutions” for attorneys aimed at fixing five bad habits that are all too common and that can create unnecessary risk of a claim or grievance.

Review Your Docketing System

For some attorneys, calendars effectively function as a “to-do” list, dictating what needs to get done on any given day and what deadlines are coming up. However, when it comes to docketing important deadlines, the best system is one that anticipates and prevents deadline-related errors. Missing a deadline or failing to attend to client interests or demands are easy targets for malpractice plaintiffs, even where the lawyer would otherwise argue that no injury or damage resulted from the missed deadline. A lawyer missing a deadline is an easy concept to explain to a jury and could even suggest a likely failure to perform other more-demanding legal skills.

Even the most careful or experienced attorneys may inadvertently fail to comply with a deadline, particularly if a systematic approach is not applied. By adopting a concrete system for docketing, attorneys are much more likely to prevent time-related errors.

Docketing mistakes often result from attorneys relying on their email system to manage every aspect of their professional lives. To avoid such errors, lawyers can employ and then re-evaluate their calendar or docket control system. Many firms already use docketing systems, but if the practitioners find that the systems are not actually helpful (or are too confusing), then it might be time to review whether there is a better system available. Effective docket control systems should help, not hinder, the practice of law. There are constant advancements in docketing systems, so even if a system may generally function effectively, it is worth periodically reassessing for any new features that provide further assistance in keeping track of deadlines.

It is critical that attorneys actually use a docketing system, once in place. If documents or deadlines are not being fed to the docketing system, there is still a significant risk of missing a deadline — and receiving a claim.

Manage Email

Another resolution is to create some semblance of order when it comes to emails. Lawyers often commit to a plan for organizing emails, only to have their inbox revert to a disorganized mess when things get particularly busy. When that happens, it becomes easy to miss a deadline or an important communication because of delays in processing or reading emails.

Leaving emails unattended to in an inbox, with the goal of “getting to them later,” can simply pile up. Foldering messages appropriately can be of great assistance in this regard. Some firms choose to limit the number of emails that can be kept in an inbox, thereby encouraging lawyers to process emails in a timelier fashion.

Check Insurance Coverage

Legal malpractice insurance is a necessity of the modern law practice. Some firms, however, give little thought to insurance other than to renew the same policy each year and to pay the premium. In 2022, attorneys can resolve to do an “insurance check-up” to understand what their coverage provides and to make sure it remains the best option available to the firm on the market.

Attorneys can be candid about what they need for insurance based on the current state of the firm. Being honest in a self-assessment about what practice areas the attorney engages in or what additional terms would be of benefit to the attorney is a plus.

It is helpful to review an existing professional liability policy before a claim is made to identify any potential gaps and to fully consider whether the policy provides everything the attorney needs. Renewals should be reviewed and analyzed to make sure that there are no unnecessary holes in the coverage.

Use Security for Mobile Devices

The use of modern technology creates challenges for lawyers, who have a professional duty to maintain client confidences and secrets. Every attorney is essentially carrying a full computer (and access to their firm’s files) through the smartphone in their pocket.

One simple and common security feature employed by firms is to require the use of a passcode. In that way, if a phone is left on an airplane or in the back of a taxi, the finder is not automatically permitted into the firm’s files and network. Some firms use programs that allow them to “remote wipe” data from their devices in the event the devices are lost or stolen. Others use programs that ensure smartphone data is encrypted or employ features such as GPS tracking and secure file sharing. What works best may vary by firm or by client.

Use Engagement Letters Consistently

The consistent use of engagement letters can help reduce malpractice claims or limit their scope. For example, the engagement letter can clearly identify the client, the scope of representation, the duration of the representation, and the fees to be charged for the firm’s services. Having these terms in writing may prove helpful down the line.

Thus, attorneys who “never” send out engagement letters can resolve to break that bad habit in 2022. However, even for attorneys who regularly use engagement letters, there may be room for improvement.

For example, a “form” engagement letter once used for a client may not be appropriate for every matter for that same client. It is important to be clear in engagement letters and, where appropriate, to update them or to prepare new ones for additional matters.

Moreover, when attorneys use a general engagement letter, such an approach can suggest that the attorney undertakes to advise the client on any possible legal issue that arises, far beyond the actual intended scope of the representation. This can create additional unnecessary risk of claims alleging duties that the lawyer did not otherwise believe they owed.

In 2022, limit these risks by resolving to fix bad habits. No firm wants to wait until a claim is asserted before improving its risk prevention. 