Most Common Malpractice Risks and Ways to Avoid Them

The most common malpractice error that attorneys commit is a failure to know or apply substantive law. However, an attorney's failure to know or apply substantive law does not account for the majority of malpractice claims. In fact, no one claim has a majority over another.

Substantive errors account for over forty-six percent of reported malpractice claims. These claims include failing to know or properly apply substantive law, failing to know or ascertain deadlines, and inadequately investigating or discovering facts. To help avoid these claims, it is important for attorneys to attend continuing legal education courses, especially when practicing outside of their usual practice areas. It is alwo important for attorneys to know their limits. For example, as I previously blogged, though an estate planning attorney may have a basic understanding of asset protection techniques, it does not qualify that attorney as an expert in asset protection.

Administrative errors make up over twenty-eight percent of reported malpractice claims. These errors include clerical and delegation errors, tickler system errors, procrastination, calendar errors, and document errors. These claims are likely the easiest to prevent as long as the attorney maintains good management skills, properly uses a tickler system, ensures that delegated work is done correctly, and keeps an updated calendar.

Client-relation errors make up over twelve percent of reported malpractice claims. These claims include failing to follow a client’s instructions, failing to obtain a client's consent, failing to keep a client informed, and providing poor communications with the client. The best way to reduce the risk of client-relation claims is to continuously communicate with clients, maintain documents that detail instructions and advice given to the client, and creatie confirmations that state what work was completed.

For more information on Malpractice Risks, see Daniel E. Pinnington, Are You At Risk? The Biggest Malpractice Claim Risks and How to Avoid Them, 36 ABA Law Practice 4 (July/August 2010).

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.