After several years of practising law, you’ve finally found your stride and have an unshakeable confidence in your abilities. Your cases are interesting and your colleagues and clients appreciate you. But then one day you receive a demand letter from a client alleging you gave them bad advice in the context of a transaction. You’re disconcerted! You naively thought that your experience would protect you from malpractice claims or lawsuits.

Yet lawyers with between 11 and 25 years of practice are at significantly greater risk of claims or lawsuits. Here are the reasons why…

Let’s look at some of the risk factors facing mid-career lawyers:

Communicating with clients

The most common cause of claims against lawyers, regardless of the number of years in practice, involves client relationships. One of the explanations for the deterioration of the relationship between a lawyer and a client is that there are gaps in their communications. Indeed, for a variety of reasons, experienced lawyers sometimes neglect their communications:

• The mandate entrusted to them is within their usual field of practice;

• The client’s request is not very complex;

• This is a long-standing client with whom the lawyer has developed a special relationship. In such situations, lawyers feel that they do not have to confirm their advice in writing or they feel uncomfortable doing so. They do not want clients to think they do not trust them;

• Similarly, such long-standing professional relationships may lead lawyers to assume that they do not have to explain an aspect of the case to the client, as the client and the lawyer have had many similar cases in the past.

What you should remember: Write, write and write some more, since you can never write enough to protect yourself. This starts with an engagement letter describing the nature and scope of the mandate, even if the client has previously entrusted a similar file to you. Thereafter, regularly inform the client of developments in the file and document your advice, both advice the client accepted and advice the client rejected.

Moreover, don’t assume anything. Just because the client accepted a settlement offer in the past, does not mean the client is willing to accept a similar offer in another case. Consequently, make sure you get written instructions from the client before accepting a settlement offer or making any strategic move in the case.

Similarly, the fact that you have represented the client in several similar cases does not relieve you of your duty to advise. It is therefore essential to provide clients with all relevant information so they can make informed decisions.

Overconfidence

The routine of daily practice is known and familiar. Overconfidence can cause an experienced lawyer to disregard the use of checklists or decide not to verify certain elements because the same letters/procedures/arguments have been used hundreds of times in the past…

As a result, the lawyer may discover a conflict of interest several months after accepting a mandate, causing harm to the client, who will have to find a new lawyer. Similarly, errors may occur when a lawyer does not take the time to check that the contract template meets the client’s needs.

What you should remember: First of all, the use of checklists is far from a childish endeavour. They can allow you to identify a problem that would otherwise go unnoticed given the hectic pace of the practice of law. In addition, they limit the risk of forgetting something and curb the tendency to cut corners out of overconfidence.

As far as the use of templates is concerned, they can certainly save you precious time. However, make sure that all relevant clauses have been added and that the inappropriate ones have been deleted. 

Higher expectations

With experience comes higher expectations from both your clients and your colleagues. These expectations may relate to the time required to complete a task or mandate.They can also pertain to the results or outcome of the file (e.g.: winning at trial or obtaining a large amount in a settlement).

What you should remember: In all cases, be honest with your clients and colleagues about what can be accomplished and in what time frame. In addition, you have an obligation to your clients to inform them of all aspects of their case (weaknesses and strengths).

Unfamiliar practice areas

Long-standing clients may want to give an experienced lawyer mandates in practice areas other than those in which the lawyer usually practices and has developed an expertise, because the clients have confidence in their lawyer and do not wish to find another lawyer. In such a situation, it may be tempting to accept the mandate in order to “please the client” or out of “fear of disappointing or losing the client”. However, accepting a mandate in an unfamiliar practice area increases the risk of errors.

What you should remember: When faced with such a situation, ask yourself if there are others within your firm who are capable of carrying out the mandate. If not, it’s better to refuse the mandate. Here’s an excuse you can use to decline a mandate delicately and tactfully:

“My experience in this area of law is limited

and I cannot adequately represent you

in an unfamiliar area of law...”.

Delegation

One of the privileges that comes with experience is the greater ability to delegate some of the work to younger, less experienced lawyers or to support staff. However, errors can occur because they do not have an overview of the file, because they have not grasped certain issues, or because they have not been informed of the client’s expectations (e.g.: costs, deadlines or results). Moreover, don’t forget that, when it comes to your clients, you are responsible for the mistakes of your support staff or your younger colleagues—whom you have undertaken to supervise!

What you should remember: Once you have established that a task can be delegated, be sure to obtain the client’s written consent. It may be a good idea to add a clause to that effect in your initial engagement letter. Then, explain your vision of the file to the person to whom you are delegating a task and let them know what is expected of them. Remember to follow up with them and to be available if they have any questions. Delegating something does not mean no longer taking care of it... For more information on the process of effective delegation, please refer to the article You Can Delegate Your Tasks, But Not Your Responsibility!.

Complexity of cases and higher dollar value 

Experienced lawyers often handle cases that are more complex or have a higher dollar value, such that any resulting “loss” is more significant.

What you should remember: The objective is certainly not to refuse this type of mandate. However, it’s a good idea to seek the advice of colleagues when in doubt and to have one of them verify the accuracy of your opinions and strategies.

Having a mastery of one’s practice area and confidence in one’s skills and having special relationships with long-standing clients are some of the advantages resulting from experience.

Nevertheless, experienced lawyers, like all lawyers, must remain vigilant in their communications with their clients, in managing client expectations, in delegating mandates and in checking and documenting their files.

 

References:

See “Do Risks Increase With Experience”, in the Praeventio Bulletin (2007), online:

 https://farpbq.blob.core.windows.net/media/1434/bullprevnov2007.pdf.

Canadian Lawyers Insurance Association, “Mid-career lawyers at greater risk of malpractice?”, (2000) 29:120 Loss Prevention Bulletin, online: https://www.clia.ca/uploads/9/5/6/7/95675990/lpb29.pdf.