Most malpractice claims involve a client suing their lawyer, but that’s not always the case. Nontraditional legal malpractice claims can also go far beyond the usual allegations of a missed statute of limitations deadline, failure to correctly interpret the law or breach of contract.
Other risks exist that can put your future in jeopardy, particularly because many attorneys will look at a nontraditional allegation as lacking standing to file. It’s important to take the following nontraditional legal malpractice risks seriously, avoiding the situation where possible and responding quickly when faced with a potential claim.
1. Attorney-Client Adjacent Risk
It’s common for there to be a number of individuals in the same environment as the attorney and their client. Examples include the client’s family, friends, business partners, employees and more. Such individuals may have interactions with the attorney and the client, even concerning the matter of representation. It’s a situation that can make the line between who is and is not the client less clear than it is in the engagement letter. Problems often arise when one or more of these individuals incorrectly assumes they are entitled to confidential information, case file access or the attorney’s time and expertise. Being clear and consistent about the limits of the attorney-client relationship can help minimize the risk.
2. Family Dynamics Risk
Within attorney-client adjacent risks, family dynamics bears special mention. There are numerous situations where a lawyer assists an individual with a legal matter that impacts one or more of their family members. Examples include wills, trusts and estates matters, bankruptcy, divorce, child custody and criminal representations, and engagements where one family member pays the legal fees of another. Problems vary depending on the situation. Estate attorneys may be sued by beneficiaries who mistake the attorney’s role in asset distribution as a beneficiary representation. Other family dynamics claims can involve demands for privileged information or a say in decision-making. These nontraditional risks can be managed proactively, informing relatives of their right to retain counsel and obtaining signatures acknowledging the nature of the representation and the payment arrangements.
3. Legal Dabbling Risk
Whether formally or informally, a significant risk exists when lawyers dabble outside their areas of expertise. The complexity of the law makes it very easy to make a mistake that can harm a client or non-client seeking advice. It can be humbling, but it’s best to admit to the limits of your knowledge in certain situations. Minimize the risk by not offering legal advice in casual settings outside areas of expertise. In formal representations, consider bringing on a qualified co-counsel or mentor to assist in new areas of practice, or offer a limited-scope engagement or a professional referral.
4. Casual Advice Risk
Although legal topics can come up in casual conversation, there really is no such thing as casual legal advice from a risk management perspective. This can be a challenge, since members of the general public often don’t appreciate or understand the intricacies of the legal profession. Finding out that someone is a lawyer, some people will simply strike up conversation. Although it can be awkward, it’s best to set and maintain professional boundaries with anyone not being represented. Control risk by following standard intake procedures for every engagement and representation.
5. Legal Favors Risk
Having a lawyer in a family or group of friends is seen positively by most people. But legal favors can come with high risks for an attorney. Unrealistic expectations and undesired outcomes can easily lead to a difficult claim for all involved. Requests for help within areas of expertise should follow regular intake protocol, with conflicts checks and engagement letters. Requests outside areas of expertise are best declined. Even with the relevant experience, it may be best to pass when a request involves high stakes matters like a real estate transaction, will or trust, tax advice or a divorce.
6. Miscommunication Risk
Miscommunication between the attorney and client is another nontraditional risk area of which to be wary. It’s important to remember that a client could be new to matters of law entirely and require an education about the process and a clear explanation of what to expect. If such steps are skipped, the attorney could be accused of overpromising on a particular outcome or misrepresenting the extent of the representation. The engagement letter is a key tool where the attorney can manage the risk of miscommunication. Precise language that sets clear boundaries on the nature and limits of the engagement can minimize the risks.
7. Online Technology Risk
Technological tools for social networking and online communication have legitimate legal uses, but their misuse can also lead to claims. Social media allows attorneys to connect with potential clients on various platforms, but the mere fact of making a connection may be misinterpreted by an individual with a legal question. Even without direct interaction, an individual could see a public communication from an attorney about a legal question and rely upon it as legal advice. Attorneys can make clear that making a connection online does not establish an attorney-client relationship and avoid providing legal advice in public online forums.
8. Non-Attorney Team Risk
A representation not only involves the attorney and the client, it also involves a number of supportive team roles by professionals who are not attorneys. Office support staff, IT professionals, cloud and e-discovery vendors, process servers and others may contribute to a representation. But when they make errors or fail to follow through on responsibilities, it is the attorney who may ultimately be blamed. Reducing the risk of a claim requires being proactive, training internal staff well, completing due diligence before working with vendors and outside professionals and monitoring the work of all non-attorneys involved in representations.
It’s important to remember that legal malpractice risks extend beyond the most common types of claims. Nontraditional risk exposures can pose a real threat to your firm, especially if they aren’t already on your radar. You can help control your risk by being mindful of the interactions between you and your clients, potential clients and other non-clients involved in a representation. Strive for clarity in your communications with all parties and make sure that the work of others is carefully monitored.
Even with the best intentions, malpractice claims can still arise. It’s important to have the right malpractice insurance when they do. Lockton Affinity Lawyer offers NYC Bar members comprehensive coverage options to help you manage the risk.
To learn more, call 844.307.5960.