Malpractice Avoidance Quick Tip

/ 20.May, 2011

Last Thursday, I gave legal malpractice avoidance talks in Lackawanna and Luzerne Counties.  As I was coming to the end of the second talk, it occurred to me that most of the substance of the talk could be condensed into one principle, one phrase and one habit.  I offer them to you as today’s quick tip:

Principle: The “C.C.” Principle (Calendar and Communicate)- In reviewing the cases our group was working on a few years ago, I found that nearly half of all the cases directly related to issues of calendaring or communication (even more included those issues to some degree).  Communication is, of course, a running theme throughout this blog/blawg.  The importance of Rule of Professional Conduct 1.4 in preventing malpractice actions cannot be over emphasized.  Which leads to the phrase. . . .

Phrase: “Informed Consent”- The communication required by the rules, specifically Rule 1.4, is designed to elicit “informed consent.”  Rule 1.1(e) defines informed consent.  “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct (note that Pennsylvania substitutes “consent” for “agreement”).  However, in terms of malpractice avoidance, this will amount to little without the habit. . . .

Habit: Put it in writing- While communication will help prevent lawsuits, writings which prove that the communication happened can be a great help in winning any malpractice action that does occur.  There are Pennsylvania rules which require writing- Rule 1.4(c) (regarding inadequate insurance); Rule 1.5(b) (regarding basis for fees); Rule 1.5(c) (regarding contingent fee agreements); Rule 1.8(a)(1) (regarding conflicts with current clients).  However, writing to the clients should not be limited to the situations in which it is required.  Regular correspondence with a client, including about the weaknesses of a case, prevent (or at least should prevent) a client from alleging surprise when a case goes south.

So there you have it.  An hour and a half’s worth of lecture condensed into one principle, one phrase, and one habit.  Embrace them and your malpractice risks will be greatly reduced.

-Josh J.T. Byrne, Esquire