Legal Malpractice Traps, Part Two
The following are some common malpractice traps that most attorneys may avoid if they exercise due care and consideration.
Ignorance of insurance coverage
While attorneys are charged with a duty to advise their clients on the insurance coverage potentially available in a matter, many fail to request and review their client’s insurance policies to conduct a complete coverage analysis. Most attorneys ignore coverage issues assuming that if the insurance carrier accepts the duty to defend, the carrier will retain other counsel to defend the client. If an attorney fails to review an insurance policy and the client expends substantial sums of attorney’s fees, costs, settlements, or to pay a judgment that should have been covered by insurance, the attorney may experience exposure to liability for malpractice.
Attorneys must familiarize themselves with e-discovery requirements and protocols to effectively advise clients regarding the preservation of electronically stored information. E-discovery errors may have devastating consequences and result in a malpractice lawsuit.
Failure to supervise associates and staff
Supervising attorneys who fail to supervise clients must accept responsibility for the errors of staff. “My secretary calendared the incorrect date” or “my colleague missed a deadline” are not viable defenses to a malpractice lawsuit. Although attorneys may defer as much work as necessary to associates and staff with lower billing rates, supervising attorneys must take responsibility for the management of the case in its entirety.
Arrogance and overconfidence
Lawyers have the propensity to be very confident, or at least act confident. The confidence of some lawyers may also border on arrogance. However, this and overconfidence may cause an attorney to neglect to perform some crucial action. An attorney overly confident in his or her trial skills may advise a client to reject a reasonable settlement offer because of the attorney’s belief that he or she will obtain a greater result at trial. While lawyers must exude confidence, it never fails for them to display a little humility.
Legal malpractice may arise in almost any circumstance. Avoiding the most common traps should be easy for most lawyers. Basic due diligence, discipline, and care go a long way in this regard and ultimately help an attorney better serve clients.
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