A Malpractice Avoidance Checklist
This is a checklist for attorneys to follow if they are hoping to avoid a legal malpractice claim against them.
3 min read
Mark Bassingthwaighte, Risk Manager
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Updated on October 18, 2023
| Posted on March 17, 2021
Given how difficult it can be to try and take a planned absence, such as a long vacation or maternity or paternity leave, it’s no wonder that having to cope with the consequences of an extended unplanned absence, perhaps due to the sudden onset of a serious health issue, can result in a crisis mode response. In short, an extended absence can be problematic to say the least. The good news is that it needn’t be this way. Regardless of the reason behind an extended absence, the accompanying headaches some solos experience can be minimized with a little proactive planning.
If you are a true solo, the place to start is to find another lawyer willing to act as your backup attorney. If your practice is comprised of several practice areas, you may need to have more than one backup attorney. For some solos, this person may be the same person who has already agreed to assist in the winding up of your practice in the event of your death or disability. Now, understand that a backup attorney’s responsibilities during your absence do not include maintaining your practice. A backup attorney is only there to assist any of your clients with an unforeseen legal emergency. Keep this in mind as it may make the process of finding a backup attorney a bit easier.
Beyond just naming a backup attorney there are several other things you might do in terms of proactive planning. Consider providing notice of the existence of and reason for a backup attorney in your fee agreements so that clients are aware that you have taken steps to protect their interests in the event of an emergency. Maintain a current Office Procedures Manual that outlines your calendaring system, conflict system, active file list, open and closed file systems, accounting system, and any other key system. This can help a backup attorney come up to speed as quickly as possible in the event of an emergency. Of utmost importance is keeping critical systems such as the calendar and conflict systems current at all times and making sure that all files are thoroughly documented and kept current.
With the above in place, preparing for a planned absence is relatively straightforward. Here are six key things you will need to take care of:
Depending upon the circumstances behind an unplanned absence, the time you have to work through these six steps may be far shorter; but they remain the key items you should try to accomplish. Of course, it’s the possibility of having no one available to assist you with your practice if you ever have to take an extended unplanned absence that underscores the importance of naming a backup attorney long before their services might be needed.
If you happen to be a solo lawyer who has employed one or more staff, things should be a bit easier because someone familiar with your practice would be available to handle the day-to-day administrative functions of your practice during your absence. This person would also be able to assist your backup attorney, as necessary. Here, the proactive planning piece includes identifying the person you wish to have in charge during your absence, putting together a list of instructions for this individual, and introducing this individual to your backup attorney in order to establish a baseline working relationship. In addition, make certain all staff are on message with what clients are to be told about your absence and make arrangements to assure staff continue to receive regular paychecks.
Even if you have no staff, you might consider temporarily hiring a staff person, if the circumstances surrounding your absence allow for it. Yes, a step like this will take some advance planning and require time for any necessary training; but it is doable, particularly if you previously took the time to develop and maintain an office procedures manual as recommended above.
In conclusion, I will readily admit that many solos do have long and successful careers without ever needing the help of a backup attorney. And I can appreciate that following through on some of the initial proactive planning steps may take some time; but I encourage you to not let either truth be what prevents you from committing to doing so. As I see it, it’s all about making it possible to take care of you and your support systems by way of a planned absence and your practice and clients if you are ever forced to deal with an unplanned absence. That’s one heck of a good reason if you ask me.
This is a checklist for attorneys to follow if they are hoping to avoid a legal malpractice claim against them.
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