Daniel L. Abrams Law Office of Daniel L. Abrams, PLLC

2 Penn Plaza, Suite 1500

New York, NY 10121

Dan@LawyerQuality.com

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Avoiding

Legal Malpractice Law Suits

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Daniel L. Abrams concentrates his practice in the areas of commercial litigation, legal malpractice, legal ethics and appeals.

Mr. Abrams received his J.D. from Yale Law School in 1995 where he was an Olin Fellow of Law and Economics. He is licensed to practice law in New York State, and is a member of The Association of Professional Responsibility Lawyers and the Association of the Bar of the City of New York, where he served on the Professional Responsibility Committee and the Subcommittee on Lawyer Promotion and Advertising from 2004-2007. He also serves as a member of the Lawline.com faculty, and has lectured for the Practicing Law Institute, lecturing on behalf of these associations to provide Continuing Legal Education credit to attorneys on legal ethics issues. He has also appeared as a guest lecturer at Suffolk University Law School on legal ethics. He has provided expert testimony on legal ethics and malpractice. His litigation cases include a multi-million dollar reversal of an arbitration award, a defense victory after a bench trial in a breach of contract case, and many favorable settlements of commercial disputes and legal malpractice cases.

DISCLAIMER: The following materials and accompanying Access MCLE, LLC audio program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an “as-is” basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author’s absolute and unqualified disclaimer of liability.

Table Of Contents

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Introduction: ……………………….

I. Client Selection ……………….

II. Retainer Agreements ……………….

III. Day-To-Day Client ……………….

Communications

IV. Legal Bills ……………………….

V. Withdrawal ……………………….

Should I Stay or Should I Go?

VI. Tips and Conclusion ……………….

Pages 4-6

Pages 7-11

Pages 12-14

Pages 15-17

Page 18

Pages 19-23

Pages 24-25

INTRODUCTION:

Why Do Clients Sue?

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The Perception Of Disloyalty Is The Primary Reason;

A Bad Result Is Usually A Secondary Consideration;

The Existence or Non-existence Of Attorney Negligence Is

Usually A Tertiary Consideration.

What Do The Strongest Malpractice

Cases Look Like?

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Clear Mistakes (e.g., missed deadlines, suing the wrong

party);

Conflicts Of Interest Or Something Else That Can Increase

Jury Appeal;

High Economic Loss;

Tight Causal Connection Between The Mistake and The

Loss;

Stages Where

Attorneys Often Get Into Trouble

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Client Selection

Retainer Agreements

Routine Client Interactions

Legal Bills

Disengagement

Client Selection:

Rules Implicated

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Rule 1.1 Competence

Rule 1.5 Fees

Rule 1.7 Concurrent Conflicts

Rule 1.9 Conflicts With Former Clients

Rule 1.13 If Client Is A Corporation

Rule 1.18 Duties To Prospective Clients

Client Selection:

Try To Avoid These Clients

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The Wanna-Be Attorney

Uninterested Client

Dishonest or “Gray Area” Client

Cheapskate Client

Last-Minute Client

*** Also be wary of taking on matter where you lack

appropriate experience

Client Selection: Where Client

Expectations Begin

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Test Client By Discussing The

Downside – This Will Build Trust

With Good Clients And Likely

Scare Away Bad Ones.

Client Selection Part 2:

Securing Clients Over The Internet

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Do Not Give Advice To Strangers Over The Internet;

Attorney-Client Relationship Does Not Require A Meeting

Or Even A Phone Call;

E-Mails May Come From States Where Attorney Is Not

Licensed To Practice;

You Risk Being Sued Out Of State And Forfeiting

Malpractice Coverage

How To Decline A Representation

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“Just Say No” Can Be Risky, Though Most Attorneys At

Least Occasionally Do This;

Notify Client In Writing If You Have Met Face to Face In

Your Office, Or A Statute of Limitations Is About To

Expire;

Avoid The Forever Lingering Consultation – Either Take

The Matter On Or Turn It Down.

Retainer Agreement

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Have One In Writing;

Define The Scope Of The Representation (Rule 1.2);

Specify Fees, Billing Practices and When Payment Will Be

Expected;

Deal With Any Potential Conflicts Of Interest;

Money Up Front.

Retainer Agreement:

Dual Representation

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Be Especially Wary Of Representing More Than One Client;

Be Mindful Of Rule 1.7;

Secure Waivers If Necessary, But Not All Conflicts Can Be Waived;

Regardless Of What The Waiver Says, Keep Dual Clients Informed Of Developments Which May Aggravate The Conflict

Retainer Agreement:

Corporate Clients

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Clarify The Client (i.e., the corporation, not the person who

hired you);

Follow Rule 1.13;

Specify The Chain Of Command And Follow It;

Deal With Contingency Of A Disagreement Among

Corporate Principals Or Change In Corporate Control.

Client Communications: Rule 1.4

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“Promptly Inform” Client Of Any Circumstance

Requiring Client’s Informed Consent;

“Reasonably Consult” With The Client About Tactics;

Keep Client “Reasonably Informed”

Comply With “Reasonable Requests” For Information

*** The Adverbs Are Not That Useful In Deciding What

To Do Day-To-Day

The Start Of A Representation: Best

Time To Explain

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What You Can And Cannot Do;

Approximately How Much It Is Likely To Cost;

Process;

Possible Outcomes;

How You Like To Communicate

Day-To-Day Client Communications

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Listen;

Become The Narrator Of The Legal File;

Make Sure Client Consent Is Documented;

Return Phone Calls/Respond To E-Mails;

Discuss Tactics With Client;

Talk About Money

Communicating In A Legal Bill

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Monthly;

Time Entries Should Actually Explain What You Are Doing;

Minimize Surprises Related To Content And Amount;

Client Questions About Bills Should Be Answered In Plain English;

Don’t Let Clients Get Far Behind On Their Bills.

Should I Stay Or Should I Go?

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Four Reasons Attorneys Want Out:

Deterioration In Relationship;

Not Getting Paid;

Emerging Conflict of Interest;

Personal Circumstances

If I Go There Will Be Trouble…

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Rule 1.16;

Attorneys Firing Clients While Legal Work Is Pending Is Disfavored;

In Litigation, Lawyer Can Only Withdraw With Permission of Court;

Withdrawing Attorney Must Protect Client Interests;

Escape Clauses Do Not Override Rule 1.16.

Poor Reasons For Withdrawal

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Too Many Other Client Commitments;

The Case Is Too Expensive To Finance;

A Weak But Non-Frivolous Case;

Lateral Moves;

Desire To Cure A Conflict So That The Lawyer Can Take On

A More Lucrative Client.

And If I Stay It Will Be Double:

Good Reasons To Withdraw

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Toxic Clients;

Breakdown of Trust;

Unpaid Legal Bills;

Emerging Conflict Of Interest;

Accusation Of Malpractice

The Disengagement Letter

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Confirm That Its Over;

Provide Notice If Possible And Necessary;

Do Not Comment On Merits;

Recommend That Client Hire Other Counsel, And That New

Counsel Call You;

Provide Balance Information But Avoid Turning It Into A

Collection Letter;

Discuss Status Of File.

Miscellaneous Tips

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1. Stay Educated.

2. Double Calendar All Deadlines, Appearances And

Limitations Periods.

3. Maintain Malpractice Insurance.

4. Notify Client And Carrier About Any Potential Problem.

5. Write A Letter To The Client Confirming That A

Representation Has Ended.

Be Cautious Before:

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Asserting A Retaining Lien;

Suing A Former Client For Unpaid Fees;

Entering A Business Relationship With A Client;

Taking On Too Much Work;

Overpromising, Either In Terms of Work Product Or

Anticipated Results.