“I knew I shouldn’t have taken that case.” Unfortunately, this is the statement we hear all too often when an insured attorney reports a malpractice claim to ALPS. In light of that fact, this article will encourage you to listen to your own judgment when determining whether or not to take a case and emphasize the importance of appropriate client selection and file opening procedures.
Hindsight offers the benefit of much clearer vision when reviewing a file. This is particularly true in legal malpractice cases. Appropriate client selection and file opening procedures are important risk management tools that you can incorporate into your law practice. Not only does this enhance work satisfaction, we believe that it can provide your clients with higher quality work product. This, in turn, results in satisfied clients, business referrals and, in the long run, increased profitability.
Fine, you say, but this is the real world. You have overhead expenses to pay and you cannot afford to turn away clients. Or, you don’t want to offend a good client who referred this client to you. Or, you feel badly that this client has had such an unfortunate experience and you want to help. Or, you handle only business matters for sophisticated clients who will not sue their attorneys. ALPS understands that attorneys face real world pressures every day. We hope that by pointing out some situations that have resulted in malpractice claims, you will review your practice decisions beginning with client selection and file opening procedures. In addition to an attorney’s statement that he knew he shouldn’t have taken the case, we have noticed that there are often very similar “red flags” in the client selection process.
When reporting a claim to ALPS, attorneys often mention that they were the third or fourth attorney who had represented the client, but that they felt sorry for the client. Sometimes, the attorney even called the previous attorney who was only too happy to transfer the file. Beware of potential clients who request that you take their case mid-stream. These clients will often present a laundry list of failures on the part of their previous attorney or attorneys. Before you agree to take the case, carefully consider why the client is unhappy with her current attorney. Is she receiving legitimately poor service? What exactly is prompting her to seek a new attorney? Ask permission to discuss the case with the previous attorney. Review the court file, if one exists. Determine whether or not you believe that you can provide a service to this client. It behooves you to pay attention to these clues. Politely decline the representation if you are not satisfied with the answers.
Beware of potential clients who have extraordinarily high expectations. Does the client appear to understand what the law will and will not allow under the circumstances? Are they overly emotional or angry about the situation? Do they want more than compensation/vindication, i.e., punishment of the opposing party? For instance, one client indicated that he wanted to ruin the opposing party’s business by picketing the sidewalk in front of the office. No amount of money would have made him feel satisfied with the legal representation he would receive because the attorney, understandably, was not willing to attempt to ruin the opposing party’s business. Approach these situations very carefully and, of course, document the scope of work you agree to perform for the client.
Speaking of scope of work, ALPS emphasizes the importance of written fee agreements. Several states require them and, by and large, most firms use fee agreements. However, we have seen claims that result from situations in which the firm treated the fee agreement only as a formality. In one situation, the fee agreement documenting the scope of work was in the file. However, the client had never signed the fee agreement. In another situation, the client had signed and returned the fee agreement, but had made changes to it. Unfortunately, no one at the law firm noticed the changes until a dispute arose. It is a good idea to implement a system that ensures that the firm does not begin work on the file until the fee agreement is returned, reviewed and placed in the file, with the client receiving a copy of the agreement as well. This procedure will not only help the firm provide better service to the client; it will also assist in defending scope of representation claims and any fee dispute or collection issues that may later arise. Furthermore, a client who is recalcitrant in signing/returning a fee agreement may also present problems when you need to respond to discovery, obtain client input or when you attempt to collect your fee, etc. Determine before you agree to represent such a client whether or not you can assist this type of client.
Additional “red flags” to note include the client who arrives in your office at the very last minute and puts you on the spot to determine whether or not to take their case. Too often, the attorneys reporting claims to ALPS agreed to take a case in a time crunch and then had great difficulty proceeding with the case. To alleviate this potential problem, some firms have implemented a 30-90 day investigation/probation period. They advise the client that during that time period, they will conduct an investigation and determine whether or not they will remain on the case. These firms report client satisfaction with the procedure -- even when the firm elects not to become involved with the case because the potential clients feel that there has, in fact, been an investigation of the merits of their case. In addition, exercise caution when the client insists on bringing a friend or relative along and also insists that the friend or relative be present at the meeting. Aside from the obvious attorney/client privilege and conflict of interest issues, ALPS has found that these situations often indicate that the potential client has additional issues that may make the representation difficult, if not impossible, and which may later result in a malpractice claim.
Finally, determine whether you are comfortable working with this client. If you enjoy working with him or her, chances are that you will be more inclined to pick up that file and provide your very best service. You do not do your client or yourself any service if you are not able to represent the client to the best of your ability.
Hopefully, by listening to your own judgment, being aware of certain red flags, and establishing appropriate file opening/fee agreement procedures, you will not find yourself having to pick up the phone to say, “I knew I shouldn’t have taken that case.”