Insurance serves as a safety net, protecting the policyholder against a wide range of potential risks. There are numerous insurance policies available based on the customers' specific expectations and requirements. One such coverage that is related to the world of legal practitioners is legal malpractice insurance.
A career in law, like any other profession, necessitates a high level of professional care. When lawyers fail to fulfill the anticipated standards of the profession, their customers may sue for what is known as "legal malpractice. "Legal malpractice claims most commonly arise when a lawyer's professional decision or action leads to losses for his or her clients. The clients may subsequently seek to recover these losses through a legal malpractice action.
While not every error made by a lawyer can be considered a basis for legal malpractice lawsuits, it is also true that several common professional mistakes on their part may lead to professional liability claims. In this article, we will look at some of the most prominent professional mistakes that can lead to legal malpractice claims. We will also discuss what lawyers can do to mitigate these common mistakes and their risks of being sued.
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Situations when a lawyer may face lawsuits from clients
- Breach of confidentiality
The client-lawyer relationship is built on mutual trust and confidentiality. But if you mistakenly reveal crucial information about your client to a third party and your client suffers any damage as a result, you may be sued.
- Acts of negligence
It is fairly common for clients to feel deceived or tricked by their lawyer, especially if they do not win the case. In this scenario, a client may sue the lawyer if he or she believes there has been negligence on the part of the lawyer.
- Missing filing deadlines
What if you miss the filing deadline for documents in court? What if you forgot the hearing date and failed to appear in court? A lawyer can be sued if such acts of his may result in damage to his clients.
Common mistakes legal practitioners can avoid
- Missing deadlines
A lawyer failing to file documents on time is the most common cause of missed deadlines in the legal profession. When lawyers need to file court documents, various deadlines must be followed. Not complying with these deadlines can have negative implications for their clients and, in turn, for themselves. When lawyers fail to file documents on time, their clients may suffer considerable financial losses. In certain cases, failure to file documents on time may result in the case being dismissed altogether.
Another common deadline-related error is referred to as a "failure to calendar" appropriately. This implies that the lawyer was aware of key deadlines but failed to schedule them properly. This can result in missed hearings, missing papers, and, in rare cases, a judgment against the client.
- Improper communication
Communication is an essential component of the lawyer-client relationship. On the flip side, poor communication is one of the primary reasons why clients sue their lawyers. A claim could be filed against a lawyer who does not answer their clients' calls and cannot justify the lack of communication.
One related reason for legal malpractice lawsuits is a failure to inform. This signifies that the lawyer, for whatever reason, did not offer relevant or crucial information to his or her client.
- Lack of consent
While customers employ lawyers to represent them in legal issues, this does not give them complete authority over decision-making. Before taking any legal action, a lawyer must always obtain the client's consent.
In the client-lawyer relationship, the clients state their objectives, while the lawyers devise a strategy that they believe will help these objectives to be met. However, if the client does not agree to the strategy, the lawyer cannot proceed. Any time a lawyer acts lawfully without the client's explicit written or verbal authorization, the lawyer puts himself or herself at risk of a legal malpractice claim.
- Insufficient investigation or discovery
One professional responsibility that all lawyers accept when taking a case is to devote the necessary time and effort to investigate their clients' legal proceedings. This stage of the legal process is known as "discovery" and it is a set of legal processes used by lawyers to gather material that will support their client's cases. If a lawyer fails to do a thorough investigation and misses important details in a case, such as failing to find a vital witness, they may be held accountable for legal malpractice.
- Failure to Understand and/or Apply the Law
Obviously, lawyers are assumed to have a working knowledge of all relevant areas of law in which they practise, as well as the ability to apply the law correctly. A legal malpractice lawsuit could be filed if the lawyer fails to apply a law appropriately, misunderstands it, or fails to remain updated with the changes to legislation within his or her jurisdiction.
- Conflict of interest
The term "conflict of interest" is rather simple to define. A conflict of interest occurs when a lawyer prioritises his or her own interests over the interests of the clients. Furthermore, putting one client's interests ahead of another may be regarded as a conflict of interest and an instance of legal malpractice. Failure to supply complete information, maintaining a personal relationship with a representative of the opposing party (client or lawyer), willful professional misconduct of any type, representing two or more parties on the same side of a dispute with conflicting interests, working for a share of a client's business transactions rather than a regular professional fee, and so on are all examples of conflict of interest.
- Fraud
This one is pretty simple. If a lawyer deceives a client or anybody else engaged in a legal procedure in order to earn an illegal gain, he has possibly committed fraud. If a client believes something like this happened, he or she can pursue a legal malpractice lawsuit against the lawyer.
- Failure to follow instructions
Lawyers can be accused of legal malpractice if they refuse to comply with directions given by their clients. After all, the client is paying the lawyer for legal assistance, and the lawyer is required to follow instructions. If the lawyer considers that carrying out these instructions will be damaging, they may state so. But they should not refuse to adhere to instructions if the client has made his choice and instructed his lawyer on the course of legal action to take.
- Mistakes in planning or strategy
If a lawyer's strategy or poor planning causes the client to suffer losses, the lawyer may be held accountable for professional negligence. Errors in strategy and planning are commonly viewed as mistakes in judgment regarding how a client's legal issue should have been addressed.
How to avoid legal malpractice claims?
It is the lawyer's job as a legal practitioner to safeguard the best interests of his clients. It is also critical to remember that lawyers must take the responsibility of defending themselves just as carefully. Here are some best practices that legal practitioners can use to not only reduce the likelihood of being sued for legal malpractice but also to protect themselves and their assets when a professional liability claim is lodged against them-
- Avoid risky and problematic cases
One of the easiest methods to minimise legal malpractice lawsuits is to be a bit selective and avoid cases that seem to be troublesome and risky. Identifying cases that may pose unique issues is a difficult but crucial procedure. To begin, lawyers must communicate openly with potential clients and encourage them to be open and transparent as well. This will help them set reasonable goals and expectations for the matter. It is also critical to ensure that the client is committed to investing the time and money required for the lawyer to build together and conduct an effective case for him.
Furthermore, legal malpractice lawsuits frequently emerge as a result of lawyers accepting matters in legal areas where they do not have expertise. Before consenting to take on a case, it is also necessary for you as a lawyer to analyse your abilities, knowledge, and strengths. If the case offered falls outside your expertise, you should politely decline the case. You should do so in writing by submitting what is known as a "non-engagement" letter to ensure that your choice not to engage in the case is documented.
- Insist on a contract
This is quite obvious, yet it bears mentioning. Lawyers should never offer services to a client without outlining and documenting their key services first. Clearly, this contract should include all relevant information, such as the conditions of services, the charge and a clear statement of what the lawyer has agreed to do under the retention and engagement.
- Consult other lawyers
Even if a lawyer accepts matters that are completely within the scope of his or her competence, there will be challenges with which they may be unfamiliar. It won't be damaging to consult a qualified colleague whenever necessary, to avoid mistakes in judgment or strategic blunders. When a lawyer calls up the assistance of another expert to evaluate the facts and potential outcomes of a case, they are assisting themselves only. Such an act will help them in making better strategic decisions, developing stronger plans, and avoiding errors that could result in professional liability claims.
It's another good idea to refer matters to other lawyers if they deal with a subject you are unfamiliar with. While it may seem odd to turn down and recommend cases to other lawyers, doing so allows lawyers to develop strong networks and relationships with other legal professionals. They will subsequently return the favour when they get a case which they believe others are more qualified for.
- Maintain thorough documentation
Obviously, it is practically impossible to document each and every element of a case, but it is critical to document as much as possible. Each customer interaction must be documented to avoid malpractice claims and minimise legal ramifications later on. It is critical to preserve comprehensive records with emails, time-stamped notes, papers, and even audio recordings of talks. This is even more important when lawyers discuss highly sensitive information or provide advice on potentially devastating scenarios and legal implications.
- Set proper expectations
It is critical to have a healthy and open relationship with the client. To have a successful professional relationship with the client, the lawyer must always try to create and maintain realistic expectations. It is essential to maintain honesty in the discussion, especially when speaking about the range of possible outcomes for the case. Lawyers should always be prepared to discuss both the best and worst-case situations with their clients, as well as anything in between.
It is also critical for lawyers to never make assurances to their clients and to moderate expectations, especially when it comes to the potential worth of the case. Most of the time, estimating the potential value of a claim is quite difficult, which is why no guarantees should be provided to customers.
- Get a proper insurance
The possibility of making a mistake and being held accountable for it is always present in the legal profession, regardless of how talented or experienced a lawyer is. That is why every lawyer and law firm requires legal malpractice insurance. This sort of insurance covers all potential failures on the part of a professional lawyer in terms of financial damage sustained by the client as a result of error or omission in the services offered. The coverage would pay both the defence costs and any settlement amounts given to the aggrieved party. A General Liability Insurance policy covers events that can occur to any business owner. But, professional liability insurance for Lawyers covers the specific lawsuits that a lawyer may face.
A lawyer who has liability insurance by his side can handle his or her task more confidently, leading to more effective results. without such an insurance cover in place, the lawyer would be constantly burdened with certain thoughts. These will include not meeting the client's expectations, being held liable for the negligence of any kind, and eventually being subject to numerous claims as a result of the services offered. However, legal malpractice insurance gives assistance in such a case and manages a situation that a lawyer could not have anticipated.
The footnote: We hope the discussion above will help you understand the common mistakes that may lead to legal malpractice claims and how lawyers can avoid them. We have also discussed other important matters related to legal malpractice claims. For the best recommendation on any kind of insurance, you may contact BimaKavach. Here, you can get the best recommendation for any insurance product in just 5 minutes.
