By Mark Bassingthwaighte
How to Manage the Risks Associated with Substantive Malpractice Missteps
A report entitled“ Profile of Legal Malpractice Claims 2020-2023,” published in 2024 by the American Bar Association Standing Committee on Lawyers’ Professional Liability, provides a statistical analysis of claims data collected from various lawyer-owned and commercial insurance companies for the period January 1, 2020, through December 31, 2023. This report is full of interesting data, such as the percent of claims by area of law, where we learn that attorneys who practice in the estate, trust, and probate area led the pack having been responsible for 13.58 % of all reported claims. The report also provides data on claims by type of activity and by number of attorneys in the firm. The most troublesome activity, accounting for more than 35 % of claims, was the preparation, filing, or transmittal of documents such as deeds, leases, contracts, wills, trusts, and formal applications. Firms of one to five attorneys were responsible for more than 52 % of all claims, which isn’ t unexpected given the number of attorneys who practice in small firms.
As a risk manager, the data most concerning to me was this. The percentage of errors categorized as substantive errors came in at 51 %. In short, more than one-half of all reported claims were based on missteps such as a failure to know the law, a failure to properly apply the law, a failure to know or ascertain a critical deadline, inadequate discovery, a conflict of interest, and the list goes on. These types of errors are difficult to address through the sharing of a practice tip because substantive errors are a competency concern, not a failed office procedure. While it’ s easy to help an attorney develop a more effective calendar system or tighten up file documentation practices, it’ s far more difficult to discuss and address what, in reality, is often simply bad lawyering. That said, here are a few suggestions that can help reduce your risk of making a substantive error.
The first and most important practice tip I can share is one you hear repeated over and over for good reason. Take it to heart. Don’ t dabble! Truly, there is no such thing as a simple will, personal injury matter, contract, or any other type of legal matter. What looks like a simple contract may, in reality, be a trap due to a lack of awareness of a unique local law that significantly affects the contract’ s terms, which happens to be an example of an actual case ALPS handled years ago that resulted in a loss payout into the six digits. If you are not prepared to handle more difficult or complex matters in a given area of practice, don’ t accept the seemingly simple ones, because too often, a dabbler will fail to see where the problems are. Stated
Mark Bassingthwaighte, Esq. is the resident risk manager at ALPS Insurance. To learn more about how ALPS can support your solo or small firm, visit alpsinsurance. com another way, a dabbler doesn’ t know what he doesn’ t know, which is a problem in and of itself. If any client or prospective client asks you to do work that is beyond your comfort zone or outside of the areas in which you regularly practice, caution is in order. If you feel you must accept it, only do so if you are willing to seek guidance from a trusted colleague or mentor knowledgeable in the practice area, partner with an experienced co-counsel, or are able to commit to devoting whatever amount of time is necessary to thoroughly research the matter.
Second, prioritize CLE. I see this repeatedly. Too many attorneys rush to take whatever CLE is available when their reporting period is about to expire. They’ re simply going through the motions to get the credit, regardless of the relevancy of the subject matter to their practice. Making matters worse, who hasn’ t witnessed fellow attendees doing something other than staying focused on the CLE presentation? I have watched attorneys browse the internet, catch up on work, take naps, and check in and then spend the bulk of the event outside of the meeting room. In fact, I have even witnessed someone check into a CLE event with golf clubs in hand. He signed in, picked up the materials and then headed out for eighteen holes. With alternative formats such as videos, teleconferences, and web presentations, it’ s even easier to pay only half-hearted attention.
The better approach would be to take CLE that is relevant to your practice area. Seek out quality programs and try to get as much from the experience as possible. Stay attentive, ask questions, and read
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