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A Malpractice Not To-Do List

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A Malpractice Not To-Do List

Almost everyone likes a to-do list. But what about a not to-do list—a malpractice not to-do list? A malpractice not to-do list is a list of professional behaviors or situations that, if undertaken, stand to bring a lawyer closer to malpractice. In this presentation, we present a seven-item not to-do list spanning every phase of a representation—from initial consultation, to relationship-building, to routine client interactions, to end of relationship. We explore why clients file malpractice claims and identify a wide range of common ethical traps.



Jason Potter:  Welcome to A Malpractice Not To-Do List by Quimbee. My name is Jason Potter and I'm a staff presenter at Quimbee.

   Most of us have to-do lists, pick up the prescriptions, weed the garden, Pookie to groomer, call mom now, match the socks, find the remote, get toilet paper. These lists can go on and on, bullet points galore, we are a list making culture. Kim Kardashian likes lists so much she even made a list of all her haters.

   What about keeping a not to-do list? Productivity experts say that a not to-do list is at least as important as an affirmative to-do list. A not to-do list can keep us doing productive things, taking steps forward to success instead of backwards towards destruction. And by extension, one way to think about attorney ethics is that it's what you don't do that determines what you do do. So, what's a not to-do list in the context of ethics you ask. A not to-do list isn't about avoiding bad habits, it's a list of tasks you might want to-do, you might unconsciously do, or you could be asked to-do, but because the tasks actually work against your professional interest, like bar membership, serving clients, et cetera, you should just avoid them all together. A not to-do list can bring clarity and even peace of mind. Sensing clarity and feeling peace aren't the most familiar senses for attorneys, especially with regard to the topic of malpractice. So it's worth a try.

   Now, lawyers for the most part are just trying to-do their best, some just make serious mistakes that lead to civil lawsuits. You can make great strides in protecting yourself from malpractice suits and disciplinary issues simply by adding a few items to a malpractice not to-do list and through it become more conscious of what to avoid. So get ready for a new kind of list you list liking lawyers. Hardly anyone sets out to be that lawyer, the unethical sleazeball, evil even, think Al Pacino in the Devil's Advocate. For the most part lawyers are well intended, but we, like anyone, can make mistakes. And it's easier to make mistakes than one might think, practicing law means doing hundreds of little things nearly reflexively every day. Practicing ethically does not just depend on thinking, it depends on reflex. If we're doing hundreds of things a day, then many of those acts basically are reflexive, little unethical reflexive actions add up and soon we are acting unethically and we may not even recognize it. Also in our practice we want to prevent any criticism by clients that we are disloyal, that we're not transparent and that we're not fulfilling expectations. These criticisms are at the core of many malpractice suits.

   The number of malpractice suits against lawyers increases every year, the average of numbers from six reports of the ABA's Standing Committee on Lawyers' Professional Liability elicited the following breakdown of malpractice suits by practice area. 21.4% of malpractice suits occur in the area of real estate. 18.6% of malpractice suits occur in the area of personal injury, plaintiff side. 11.7% of malpractice suits occur area of commercial transactions, business organization. 9.9% of malpractice suits occur in the area of family law. 8.7% of malpractice suits occur in the area of estates trust and probate. 8.5% of malpractice suits occur in the area of collections and bankruptcy. 4.5% of malpractice suits occur in the area of personal injury, defense side. 4.4% of malpractice suits occur in the area of criminal defense. 12.5% of malpractice suits occur in other areas of practice.

   There's a tension within the legal profession about malpractice suits. The minority opinion is that most problems between attorneys and clients merit administrative resolution by the bar, only a minority of real stinkers should make it to the courts. The standard of liability, according to this view, shouldn't be too strick because that would sty me innovation in developing solutions to clients' problems. The majority opinion is that lawsuits by clients are better enforcement than disciplinary proceedings. Lawsuits will shore up public regard for the profession if blundering lawyers are brought before courts stand liable before the law. Lawsuits will also shore up public regard for the judiciary, which the public might otherwise regard as being in cahoots with the bar.

   What's the difference between professional discipline and civil liability? Professional discipline is based on state rules of professional conduct. These rules are, quote, a gauge by which to determine the competency of the bar, unquote. Professional discipline is based on the state rules of professional conduct, these rules are a gauge by which to determine the competency of the bar. The rules, however, aren't designed to be a basis for civil liability, they don't create a cause of action or give rise to negligence per se. As a side note though, restitution can sometimes be ordered as part of disciplinary proceedings. Clients who want to recover damages against their lawyers must look to the laws of malpractice or other civil liability. Legal malpractice includes claims based on either professional negligence or breach of fiduciary duty. Lawyers owe a fiduciary duty to their clients, the law requires complete fidelity to the client and good faith. Lawyers are liable for client's damages resulting from a breach of these duties, that breach could include a conflict of interest, breach of confidentiality and defrauding a client. The theories of negligence and breach of fiduciary duty can overlap depending on the jurisdiction, as well as depending on laws regarding proof and allowable damages.

   Under a negligence theory, the threshold issue is whether there was an attorney client relationship. Lawyers are only liable for professional negligence if there was a contracted attorney client relationship, and sometimes to third party beneficiaries of those contracts. Once proven, the client has the burden of then proving the elements of professional negligence. A lawyer is liable for professional negligence. If the lawyer owed a duty of care to a person, the lawyer failed to exercise do care toward that person, that failure is the proximate cause of injury and the lawyer lack a defense. Stated another way, when a lawyer doesn't employ the knowledge, skill, and degree of care appropriate for the matter handled, the lawyer is liable to a client for any injury that was approximately caused by that breach. Mere error in judgment alone is not enough to breach the duty of care. The standard of care to which lawyers are held is the level of competence and diligence normally used by lawyers in similar circumstances to pursue the client's lawful objectives within the scope of the representation. And insofar as damages are concerned, there's a broad array of damages that can suffice. One Louisiana appeals court found a woman who had suffered severe mental anguish as a result of a withdrawal issue was properly awarded damages.

   Ingredients of a strong legal malpractice suit against a lawyer include the following, unambiguous mistakes by lawyers. Legal malpractice suits can't survive on speculation and conjecture, it's got to be big, like the shopkeeper's refusal to serve Julia Roberts in Pretty Woman, big mistake, huge. A second ingredient for a strong legal malpractice suit against a lawyer is the case's potential appeal to jurors. But note, there is little evidence to suggest that jurors treat attorney defendants any differently than other defendants, despite negative public perception about lawyers. A third ingredient is clear causation. Different jurisdictions may articulate the causation rule differently, but generally the client must prove that their loss is approximately caused by the attorney's legal malpractice. That is, the negligent conduct is a substantial factor in causing the loss. To establish causation plaintiffs must show that they would have won in the underlying suit or they wouldn't have been damaged but for the lawyer's negligence.Another ingredient, plaintiffs who trigger juror sympathy. Plaintiffs are sincere, may also trigger juror sympathy. Juries are people and people generally have a positive response to sincerity.

   So why do clients sue their lawyers in the first place? Well, first attorney negligence. Actual mistakes made during representation like ignoring binding law, failing to record a real estate transaction erroneous drafting of a will or incorrect advice on a statute of limitations. But there are other reasons clients sue lawyers as well, let's call them the three resentments. Perception of disloyalty, when the lawyer becomes part of the problem. Unmet expectations, when the desired results just wasn't achieved. And poor communications, when something about the lawyer's communication raises an issue of attorney negligence, and this underscores the importance of developing good communication skills, it's insuring yourself against malpractice suits. These are often the baseline for dissatisfied clients and constitute their subjective rationale for filing ethics complaints.

   If these are the major resentments, the sore spots for clients if you will, then our not to-do lists should be calculated to help prevent these resentments from developing. In this presentation our not to-do list items can all be grouped around one or more of these resentments. These resentments are useful in guiding our conduct like beacons. In the choices we make as attorneys we can ask ourselves, does this choice bring me closer to one of the resentments. If so, try to avoid it. In this presentation we will compose a list of things to refrain from doing to prevent clients from experiencing these resentments, the subjective feelings that often give rise to legal malpractice claims. We'll cover a wide range of ethical issues that often lead to malpractice, and we'll look at every phase of a representation, initial consultation to relationship building, to routine client interactions, to end of relationship.

   All right, without further ado let's get on with this list. Now, remember each of these keys into or helps prevent one of the three resentments. Perception of disloyalty, unmet expectations and poor communications. Do not do these things to help ward off these pesky resentments.

   First, do not accept clients with problematic baselines. The best way to prevent malpractice is to avoid taking on clients who give off malpractice danger signs. Once accepted, representations are hard to end by a lawyer's unilateral action. These are some clients who present a risk on intake and some who don't present risks on paper but can later be a malpractice threat. The DIY client, also known as the pro se litigant or wannabe attorney. The detached client, a client who doesn't seem like they have a dog in the fight. The dodgy client, a client who's dishonest and operates in a gray area, this is a big source of issues. Some ethics experts say that the problem of bad clients may be the top cause of malpractice suits. Ethics scholar, William Freivogel calculates that about 80% of all mega losses, more than 20 million, involve malpractice claims by dishonest clients and their business practices. One insurer of large law firms calculates that client misconduct existed in 36% of the insurers' loss reserves in 2018.

   Failing to recognize that a client was involved in illegal or dodgy behavior can subject a lawyer to an allegation of facilitating or acting complicity with that behavior. Or third parties injured by dishonest clients will seek out additional people to compensate them, including the client's lawyers. Look out for concerning motives or unreasonable expectations from the outset.A new client who wants to sue primarily for revenge rather than economic gain poses a threat. Because revenge is rarely achieved in the legal system that may result in a dissatisfied client who may transfer those feelings to the lawyer. Another red flag, the prospective client who has sued other lawyers.

   Next up is the depleted client, clients in financial distress or financial instability. Instability whether personal or across the entity is a red flag. One way to check is to-do a credit check to get the bigger financial picture. Next, the deal maker client, the penny pinching or let's make a deal client. Some clients who assert that a matter can be easily handled at very little expense are not easily satisfied and are not likely to have their expectations met. Next, the dicey corporate client. If a client wants your help closing a deal and assures low risk, low taxes and high rewards, it's a red flag. In a deal if at least one party isn't sophisticated and is unrepresented that's a red flag. Corporate clients who have previously been involved in financial misdeeds or convicted of a crime are also a red flag. Here's what to check, do an internet search of individual or corporate clients and principles, including others involved in the matter or the transaction. Look for news, history and accusations of wrongdoing.

   Next, the dilatory client, or the last minute client, the client who needs your help ASAP. The drifter client, this is another red flag, the client who has already changed lawyers sometimes more than once before meeting you. A client's history of short term relationships with other attorneys, even if no reason can be identified is a red flag. The same is true regarding relationships with other professionals, there is value in a long term relationship with professionals. Although there are many reasons to change attorneys, accountants, doctors, and dentists, a pattern of such behavior could reflect a problem. Next, the divergent client, just the bad fit, maybe outside the attorney's area of expertise, a personality clash, or interests are not aligned. If a client insists that it's all about the principle not the money, managing expectations can be challenging. And finally, the digital client, one who reaches out over the internet. They may be from different jurisdictions, which might raise an unauthorized practice of law question. And this type of client rarely leads to an actual attorney client relationship.

   One good thing to-do is to develop and formalize evaluation factors for potential clients. You could use some of the characteristics of problem clients that I mentioned. Have an attorney other than the originating attorney, if possible, evaluate according to the methodology. Evaluate each factor positive, negative, or neutral, even if the client seems like a great potential fit. You could formalize and create rules like a certain number must be positive to accept the matter.

   Next up, do not miss opportunities to align expectations. During initial consultations, don't get to a thirst for details or get carried away with questioning during the first part. Limit the first part of your consultation to only the confidential information reasonably necessary to run a sufficient conflicts check. You may still have a duty not to disclose or use confidential information, even if there's no attorney client relationship that flows from the meeting. Write a declination letter, it's not uncommon or a non-client who speaks with an attorney to sue them for failing to-do something, alleging that the attorney was acting on their behalf or understood that. What do you do if you have no evidence or documentation of this? The declination letter is that documentation. There's a myth that declination letters are a waste of time or too costly or not a problem if they're overlooked, get in the practice of writing that letter. If there's something pressing about the matter or even if not, encourage them in the letter to seek other counsel promptly.

   Be careful of over promising. We're all eager for a happy ending and we might even believe that we can make it happen, but tamper that excitement and avoid promising happy endings. Always be measured and candid about results and the likelihood of achieving those results. Always be wary of predicting a result if it depends on the decision of a third party. With existing clients, if advice is meant to be tentative inform the client of that, the attorney has the burden of removing all ambiguities. This goes to rule 7.1, untruthful statements of the Model Rules of Professional Conduct. This goes to rule 7.1 untruthful statements, misleading, truthful statements are impacted by rule 7.1. A statement is misleading if there's a substantial likelihood the statement would lead the reasonable person to form a specific conclusion about the lawyer's services and there's a just, reasonable factual basis for it. In other words, do not tell a lie, any kind of lie. Do not mislead, that's a lie, over promising is also implicated by impractical estimates about fees. This is often a baseline for dissatisfied clients and are their subjective justifications for filing ethics complaints. And this goes to one of the resentments, creating unjustified or unreasonable expectations about results that the lawyer can achieve.

   Next, do not hastily define any boundaries. This is about relationship building. Contingency fee agreements and engagement letters are an opportunity to define boundaries. The rules of professional conduct in all states ethics rules require a writing for contingency fee agreements. The Model Rules and ethics rules of most jurisdictions do not require a written engagement letter or other fee arrangements like hourly billing, the most common type of legal fee. Model Rule 1.5B states that the scope of a representation and the basis or rate of the fee and expenses shall be communicated to the client preferably in writing. Well, why not protect yourself. Do not hastily define boundaries, is this not to-do list item. Follow this item on your not to-do list and steer away from treacherous waters.

   Create a clear, straightforward form engagement letter or retain agreement for all new clients. As you develop them, play the tape forward, ask yourself could anything in here raise the risk of malpractice suits in the future. Cover legal fees, expenses, and scope of representation. And avoid clever drafting of rich entertainers. Judges have difficulty interpreting them and they are always construed against the lawyer, remember that as you write them. Stay with the herd grasshopper.

   The scope of representation clause in a engagement letter is the most important part for documenting the limits of the relationship. Model Rule 1.2C allows reasonable limitations to the scope of engagements with the client's informed consent. After documenting it, work within the established bounds. Adequately identify the client in the engagement letter, especially with corporate clients, be very clear about who you represent. If not, you may have created new unintended attorney client relationships.

   In terms of relationship ending, closure letters are important. Write a closure letter at the end of a representation to confirm you have completed everything you set out to-do. Remind the former client of any other obligations you or they have, and give a file retention policy. In terms of withdrawing, Model Rules of Professional Conduct rule 1.16 sets conditions of mandatory and permissive withdrawal, client crimes or fraud, using the lawyer services to commit crimes or fraud, and nonpayment of fees. Courts may not allow withdrawal if the client is not in a position to get another lawyer. If you must withdraw, one issue is being very careful when writing the reasons for the court, this can violate the duty of confidentiality.

   Here are some good and bad reasons for withdrawing. Some bad reasons to withdraw. I'm too popular, I can't underwrite it anymore, I can't find any hook to a winning argument, but it's not frivolous, I'm jumping ship. These are all bad reasons to withdraw. Some good reasons to withdraw. I'm actually unable to work, we've lost all trust, the client has basically bailed and left me with unpaid bills, I see a conflict is forming or I've been accused of malpractice. When ending a representation, advise the client of the implications of the termination.

   Next up on our not to-do list, do not undermine the partnership. The client must be treated as an equal actively participating partner at all times and active engaged partners communicate responsibly. The basis for ethical communication is Model Rule of Professional Conduct Rule 1.4. Here's the underlying premise of rule 1.4. Rule 1.4 presupposes that the client is a partner in the effort, an active participator. A comment to rule 1.4 states, quote, reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation, unquote. Rule 1.4 is more easily satisfied if the lawyer is just in regular communication with a client. Here's a basic principle for all communications, lawyers should meet reasonable client expectations for communication and info in a manner aligned with the duty to act in the client's best interest and the client's overall requirements regarding the character of the representation.

   For regular communications you don't have to respond immediately, just reasonably. Sometimes taking some time to compose the response and even sit on it for a while before sending can avoid a situation where you either give incorrect guidance due to haste or fail to check your email for tone. Tone can contribute to client resentments, remember the client is to be treated as a partner. Failing to return phone calls promptly also contributes to the resentment of perceived disloyalty. Clients might think you're spending more time on other people's cases than on mine, I don't matter anymore.

   Also, when you're returning for own calls, completeness and accuracy matter if advice is only tentative tell them, remember that you have the burden of removing all ambiguities. In terms of keeping the client informed, never lie ever. This includes lying by omission the is to be treated as a partner and needs to be able to participate intelligently in decisions about the representation, that means they need to be treated as you are equal. The challenge here is that there's often a big knowledge and informational asymmetry between the lawyer and the client. You could think of your role with the client as narrator of the file. The narrator boils it all down for a lay audience fills in the missing pieces of, of information and explains the context. When explaining aspects of a case to a client think of yourself as acting as the narrator, failure to advise clients about the risks and failure to get their consent before acting or entering into an agreement leads to a substantial number of malpractice suits.

   Also, always bill regularly, malpractice suits still occur when lawyers forget to bill until the relationship has ended. And here's an important topic on communication, listening. So many issues can be predicted and avoided with active listening. M. Scott Peck said, quote, you cannot truly listen to anyone and do anything else at the same time, unquote. Here are some common listening errors, poor listening involves drifting off or thinking about something else, critiquing what the client or perspective client is saying, determining what your response will be, listening only with a specific goal in mind. Effective listening involves showing your attention through posture, direct eye contact, physical cues even like nodding. Effective listening also involves being present, not thinking about the past or the future. It involves not interrupting, clearing one's mind of judgment and embracing pauses and silence.

   Oliver Sacks said, quote, we speak not only to tell other people what we think, but to tell ourselves what we think. Speech is a part of thought. Unquote. Sometimes clients don't speak super clearly, but we owe it to them to persist and truly listen. People really don't like feeling that they're not being heard and understood, help prevent the formation of one of the three resentments, disloyalty, lack of communication, et cetera, through effective listening. And with all the communication related choices you make, ask this, are you staying true to that item on your not to-do list?

   Next up, do not ignore Murphy's law with conflicts and deadlines. Murphy's law states that anything that can go wrong will go wrong. In certain areas assuming that everything that can go wrong will go wrong is the safest way to go. This has been used for many years in the treacherous sport of mountaineering. Conflicts of interest are a breach of a lawyer's duty of loyalty to a client, so it goes directly to one of the resentments. They're a significant source of trouble. Adding an allegation of a conflict of interest to a malpractice claim can make it much harder for the lawyer to defend. It can connect the dots for the jury or the judge. It becomes a plausible reason for the primary conduct at issue in the complaint.

   A big risk are joint representations representing two or more parties at once. Joint representations can occur with divorcing couples, with a married or partnered couple on will with multiple plaintiffs in a personal injury claim or multiple parties forming a joint venture, a buyer and seller in a real estate transaction. On the one hand joint representations can be an advantage as co-defendants in a suit for example. On the other hand, they can lead to perceived or actual conflicts of interest. The confidentiality rule is different for two jointly represented clients by one lawyer than for one client. In this situation, the lawyer owes ethical duties to each client and can't disclose information about the matter to third parties. Unless there's an engagement agreement otherwise, the lawyer is required to disclose to the client all information learned, including information learned from each client. Waving attorney client privilege for communications often can't occur without the consent of the other party. The bottom line in a joint representation is no secrecy. And anything one client says to the lawyer is fair game to tell the other client.

   If you are considering a joint representation, ask are the interests of the potential clients aligned in all respects or does anything diverge? This according to Model Rule of Professional Conduct rule 1.7A2, if they're not aligned in all respects, advise each to get independent about the joint representation, and get written and informed consent if you proceed. If not, advise each to get independent advice about the joint representation. If the answer is yes, further analysis is needed. If the answer is yes to whether the interests of the potential clients are aligned in all respects, ask is the issue waivable. If not, do not proceed. If it is, further analysis is still needed. You should ask, can you remedy the issue if both sign a waiver. This is rule 1.7B. If you can't, don't proceed. If you can, you must continually reevaluate the conflict's issue as you proceed with the joint representation.

   Discuss how both potential and any actual conflicts will affect your working relationship with all parties. So, inform both clients that there is no individual client confidentiality among the unit, advise each to get independent advice about entering that joint representation and do not move forward until all clients have given informed consent in writing. Again, don't ignore Murphy's law. What can go wrong, will. So be prepared. Overall, avoid joint representations if there's a major chance that potential conflicts will turn into actual conflicts. As one ethics expert stated, quote, remember Murphy's law more often than not, the actual conflict will arise, if it does and is one that cannot be waived, your only will be to completely withdraw from the entire matter, unquote.

   Write a closure letter after a joint representation is over. In fact, this is the reason why conflict savvy firms keep all letters of closure even after destroying the related file years after closing it. The closure letter is part of the conflict database because it documents who is a current client and who is a past client. Future waivers at the end of a relationship can work, according to Model Rule 1.7B, comment 20, but it depends on whether the former client can adequately understand the risks and it depends on the lawyer's ability to sufficiently predict and explain foreseeable future conflicts and possible bad effects on the client. In terms of a business relationship with a client, you need to be very care about this, usually they're construed against the attorney. Rule 1.8 comes into play here, the transaction must be reasonable and fair to the client. The client needs to fully understand the terms, risks, and disadvantages to them, any reasonable alternatives, the attorneys part in the deal and any conflicts. The client needs to be advised to seek independent counsel and be given reasonable time to seek it. Also, written consent is important.

   Another common cause of malpractice suits are suing for unpaid fees or liens. When you do this, you should assume the worst case scenario. That you lose and you're now saddled with a malpractice claim. Suing for fees frequently leads to these malpractice claims, they may be payment avoidance strategies. One study found that 40% of nonpayment claims produced a malpractice counterclaim. Sometimes suits are appropriate, but they can also open a can of worms.

   Another common malpractice instigator is missing deadlines. A major lawyer's professional liability carrier estimated that since 2011 missed deadlines have accounted for a third of its litigation mistake reserves. So big opsies occur around statutes of limitations, appeal dates, bringing cross claims, supplementing expert reports, perfecting security interests in a timely manner and patent application and maintenance fee deadlines. Missed deadlines often are a calendaring or staffing issue or studying issues. Calendaring and staffing issues occur when calendars don't sync on all devices or an assistant forgets to calendar, or you forget to calendar or rely on someone who's not available like an assistant who's on vacation.

   When there are gaps in staffing, missing deadlines are often studying issues as well. Sometimes the attorney is not aware of the entire body of law, like they miss deadlines in the regulations. This is where having a mentor in the practice area would help. Prevent missing deadlines by building a backup into your calendaring routine. In the worst case that you forget or failed to see a deadline, if you've built into your routine double calendaring and double checking for upcoming deadlines, the likelihood of missing it decreases. Also, consider keeping a paper calendar in addition to using a computerized system or have your assistant record critical dates, as well as you. Have a survival plan in place in the case of a missing deadline, who will you talk to, what would you research, would you file an extension even if you've missed the deadline, for example. Have a plan in place. And if you miss a deadline, don't panic and don't keep it to yourself.

   Next, do not multiply task or work in a vacuum. Multitasking is a common in modern legal practice, it creates a pressure cooker. Mistakes are the biggest cause of malpractice claims and multitasking is a major source of mistakes. Research on multitasking indicates that multitaskers performed worse than those doing one task at a time. The longer the multitasking goes on, the more difficulty people have keeping it all sorted out in their brains. Multitasking actually reduces efficiency and accuracy. Some types of mistakes that can be made with multitasking, billing mistakes, logging hours and mistakes in client communications.

   So are some solutions for dealing with multitasking. Set dedicated blocks of time in your calendar for undistracted client work. When doing client work, focus solely on that client's work. During these blocks of time, turn off cellular and desktop and laptop notifications, consider even working offline if it's feasible. Also consider using an app that disables access to certain functions of your devices until the task is complete. We live in a world of notifications, text message, you've got mail, ding, Twitter, Instagram, Wikipedia wormhole. Here are some examples of distraction blocker apps, Cold Turkey, that's free. The app Freedom, which blocks access to certain websites or the entire internet. Also don't multitask when you're returning client emails, take your time. Communications must be prompt, not instantaneous.

   And then another issue, working in a vacuum. In science a vacuum is space where there's no matter and no air. Working in a vacuum means you are removed from the overall context of something and having that insight is best for understanding, assessing or analyzing the work. According to one 2019 study, attorneys at large law firms of over 100 people only account for 14% of working attorneys. Whereas 63% of them work at firms with 10 or fewer attorneys. One ABA analysis in 2012 indicated that 49% of lawyers in the US are in solo practice. If a lawyer works in an environment where the lawyer can't get a second opinion or any needed perspective on an issue, this can contribute to malpractice, especially in the problem areas we've discussed in this presentation, like conflicts of interest. Now, data supports this. One 2015 study found that lawyers working at small firms or solo practitioners constitute over 60% of malpractice claims. To avoid this item on your not to-do list, to avoid working in a vacuum, seek advice.

   Examples of places you can seek advice from, malpractice insurance carriers, your ethics partner at a law firm if you have one, state bar ethics hotlines, mentorship programs, and other attorneys practicing in the area or who have handled similar or the same issues. The ABA has a very comprehensive national and international directory of legal ethics and professional responsibility resources. I've provided a QR code here, you can scan this using your smartphone and get a link directly in your phone of the ABA's directory. Also, I've provided a link in the course materials. It includes state law school, national organizations, journals and other links. Also consider leaning in on rule 1.6, quote, a lawyer may reveal information related to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer's compliance with these rules, unquote.

   And next, do not assume you'll bounce back. Russian playwright Maxim Gorki once wrote, quote, when work is a pleasure life is a joy, when work is a duty life is slavery, unquote. If that's true, life for many lawyers is slavery. The legal profession is a culture of ambition, perfection, self-sufficiency and competition. It shouldn't come as a surprise given the numerous stressors for lawyers, including but not limited to, workload long hours, lack of vacation, billable hour expectations, interpersonal difficulties, little support, comradery, or mentorship. As the desire to escape increases, the vulnerability to depression, anxiety addiction, a highly effective means of escape also increases. This vulnerability is amplified by the normalized culture of alcohol and substance use in the profession. Drinking has been the accepted go-to activity to celebrate a big win or to blow off steam after a long week or to meet and make friends with clients.

   So, lawyers are already made vulnerable by their environment. Lawyers are also made vulnerable by are very qualities that make them good lawyers. A good lawyer is self sufficient, but when out of balance that can cause isolation. It often leads to a lack of support and lawyers are trained to figure things out themselves, this can lead to reluctance to ask for help. A good lawyer is also considered a problem solver, but out of balance that can lead to controlling behavior. A good lawyer is also detail oriented, but this can lead to perfectionistic behavior. A good lawyer is a zealous advocate and out of balance, this can lead to high stress and competition. A good lawyer is also a multitasker, but as we discussed that can lead to unwarranted pressures, no time and lack of care in work. A good lawyer is able to endure stress, but that can and lead to feelings of invulnerability. According to the group, Lawyers Concerned for Lawyers, quote, most lawyers are acculturated to present an image of themselves as knowing capable, even invulnerable, unquote. All these things can make you a highly successful lawyer, but these qualities can also lead to addiction, stress and mental health issues.

   Now, many personal factors can lead to disciplinary issues, depression or other mental health issues, unaddressed physical or health related issues, substance use disorder, financial distress, career burnout, serious family issues, to name a few. But there's a particularly high correlation between addiction and malpractice suits. This is not surprising considering that alcohol, substance use and mental health issues are pervasive in the legal profession. The data suggests that attorneys drink in a manner consistent with alcohol use disorder at a rate higher than those in any other professional career. In a 2016 ABA study of 12,825 licensed working lawyers, the rate of problem drinking among the cohort was about 26%. Contrast physicians and surgeons that have a rate of about 15.5% and contrast the general population, 6% of adults in the general population over 26 qualify as problem drinkers. In terms of mental health, 61% in the ABA study said they had concerns with anxiety at some point in their careers. And 46% of respondents indicated that they had concerns with depression at some point. So as compared to the general population, lawyers have three to four times the rate of depression and two to three times the rate of problem drinking.

   In terms of substance use 3,419 attorneys surveyed in the ABA study answered the questions about substance use. And that means that about 75% of attorneys surveyed skipped every question about substance use on the survey. A reported 50 to 75% of lawyer discipline problems involve substance use, and these issues are not uncommon. According to one New York recovery center, opioid addiction and addiction to benzodiazepines like Xanax are two major trends among lawyers. They report that, quote, every attorney that comes in for treatment, even if they drink are using drugs too, like Xanax, Adderall, opiates, cocaine, and crack, unquote.

   So there's a high level of risk among attorneys, but we also see a high level of fear about out seeking help. Nonetheless, the longer someone waits to get help for addiction related issues the more likely they will become defendants in malpractice suits. One study found that 60% of the attorneys who entered the Oregon State Bar's Professional Liability Attorney Assistance Program had a malpractice suit filed against them while suffering from substance use.

   Active addiction and the practice of law implicate rule 1.1, the duty of competence and rule 1.3, the duty of diligence and promptness. Whether an attorney is an active addiction, under significant stress, dealing with mental health issues, family issues, or financial issues, one thing is clear, attorneys and even successful ones are constantly facing personal and professional adversity and need a strong resilience response. Don't assume you'll bounce back, it doesn't always happen if we don't practice resiliency.

   Resilience is a process that enables us to bounce back from adversity in a healthy way. Having resilience doesn't just come naturally, it's practiced. Practicing resilience allows attorneys to emerge stronger, and practicing resilience is like insurance against discipline and malpractice. For example, a lawyer who loses a huge trial may feel pessimistic, beaten down, dazed and burned out. The lawyer may become riddled with feelings of inadequacy, hungry for escape, and certainly more at risk for reaching to substances for relief from all this. And certainly at risk for losing focus, interest and acumen in client matters. With a quicker resilience reflex, attorneys can bounce back from adversity without internalizing loss or seeking outside ways to expunge those feelings of inadequacy.

   So, there's a practice to resilience and there are strategy we can use to engage in that practice, like make intentional changes to your mindset. An excellent example is Amy Poehler's account of changing her mindset around nerves. Amy says, quote, I think it's glorious to be nervous. Being nervous is great, how often do we get to be nervous on a daily basis? Being nervous means you care and you're alive and you're taking some kind of risk. Hurray for being nervous. A friend told me to substitute the word excitement for nervous, that way you acknowledge the physical feelings without putting a negative spin on things. So to answer your question, sometimes I still get so excited about Weekend Update that I want to throw up, unquote.

   Another technique, cultivate presence. Many of the stresses of lawyering are caused by things that occur in the past or things that may occur in the future. Lawyers aren't very good at living in and appreciating the present. And the whole purpose of using substances is often to escape the present. The old saying goes, quote, you don't start seeing deer until you look for them, unquote. Practice taking responsibility for making your present life work for you and appreciating what occurs in the present. All you really have is your immediate experience anyway. You can practice this by sitting without an agenda for two minutes and shifting from doing to being.

   Another technique for cultivating resilience, find your team. Who are the people who bring you closer to wholeheartedness, find them. And your team should include a team of your experts, peer support, primary care physician, therapist, and maybe a psychiatrist. Also, practice gratitude, intention setting and acceptance. Gratitude is a fantastic tool to snap back. Every morning write a gratitude list with five items on it. It resets worry, its instant perspective. You could even try sending random gratitude text messages. Also, practice intention setting, set an intention for the day or for the week and reorient yourself around that intention throughout the day. Here's an example intention, I will ask for help. And in terms of acceptance, only worry about the things you have control over. The group Lawyers Concern for Lawyers said, quote, lawyers are human beings and thus subject to vulnerabilities and setbacks, unquote. But we should also be able to recover from them and be stronger lawyers because of them.

   So here's the complete malpractice not-to-do list. Do not accept clients with problematic baselines, do not miss opportunities to align expectations, do not hastily define any boundaries, do not undermine the partnership, do not ignore Murphy's law with respect to conflicts and deadlines, do not multitask or work in a vacuum and do not assume you'll bounce back.

   If you want to create your own malpractice not-to-do lists, think about the client focused activities or issues that will take you closer to one or more of the three resentments, unmet expectations, poor communication, and perceived disloyalty. Think about what the habits or practices are that bring you closer to professional negligence or serious mistakes. And what are the things you do professionally that just give you an uncomfortable feeling, build your not-to-do list around these things. There are lots of things we'd probably prefer not to do in our lives, things that don't further our interests or values like spend an hour on Facebook or any time at all for that matter, watch any Real Housewives episode, worry about things we don't have control over or live in isolation. By deliberately calling them out and frequently reminding ourselves about them, we can train our minds to reflexively avoid these traps and make orienting our lives around our core values easier.

   The same is true for a not-to-do list in the context of legal ethics. Are reflexes as lawyers need to conform to the values of our profession and they shouldn't unwittingly lead to common client resentments that are the baselines for malpractice claims.

   Thank you for joining us for this presentation about malpractice by Quimbee. To learn more about the context for today's presentation, please check out the course materials which include today's slides and associated presenter notes. We hope you'll join us again soon. Thanks.

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1h 24s

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