Distinguish between legal competency and the ability to avoid malpractice

Lawyers very often feel that their competency as attorneys is sufficient to protect their practice from errors and omissions liability claims. Actually, and unfortunately, the two elements are often quite disparate, as our recent study has demonstrated.

Our study of 60 law firms was conducted over two years and involved more than 400 liability claims. It found that only about a third of the professional liability claims made against lawyers were actually grounded in questions of lawyer (in)competency or legal error. Even errors in judgment represented only a small part of the overall picture.

A full two-thirds of the total professional liability claims represented all other factors. As much as 40 per cent of that portion was related to ministerial issues, primarily missing dates and deadlines or staff errors.

What was leftover had little or nothing to do with the capability of the lawyer to handle the legal issue. Rather, it had more to do with a poor choice of clients in the first place, a misunderstanding of the role that the attorney would play in the representation and poor management skills. All of this might be termed the overall ‘legal landscape’.

Defining legal competency

Legal competency has a great many definitions and involves many elements, but it ordinarily refers to the ability of an attorney to handle the legal issues involved in client representation. A gross simplification would generally say that this consists of three parts:

1. an understanding of the legal environment (the courts and the legal system);
2. an understanding of the actual law as it is written; and
3. the ability to manage these two elements toward a successful representation.

None of this actually addresses the issues involved in systems and management, nor does it necessarily involve the ability of lawyers to work with others in the legal services delivery team (other lawyers and staff).

To further complicate the picture, an American Bar Association study has found that the attitudes of clients toward their attorneys are quite different from what one might well believe to be the case.

It found that clients believe the most important thing involved in their representation is the sense that their lawyers care about the outcome. In some cases, this seems to overshadow even the actual results of the representation.

This brings another factor into play and that is the quality of the communication between lawyer and client. Certainly, communication is not one of the subjects involved in most (if any) law school curriculums.

Lawyers who have suffered professional liability claims often protest their innocence in terms that they themselves can understand, but which are real giveaways as to the issues involved.

They might say that the problem was in: the difficulty of working with a particular client (client choice); the inability of the client to understand the actual circumstances of the representation (communication); the changes in the law that caused an unexpected conclusion (legal errors); the failure of the client to pay for the services rendered; or other factors.

In fact, as these studies demonstrate, the actual advice given may be spot on. In another time or place, or with a different client circumstance, there would have been no difficulty involved in the representation.  In this particular circumstance, however, things didn’t proceed as they might have and it resulted in a claim of professional liability.

Ancillary factors

To avoid such circumstances, lawyers should try to control the ancillary factors involved in representation.

They should: create (and have signed) a binding contract; spell out the issues for the client in writing beforehand so that there is no possibility of confusion or misunderstanding; ask for help from a colleague when undertaking representation; receive and provide training for lawyers and staff in the office; and be able to manage both their time and the client.

Avoiding professional liability claims involves more than the generally-understood ‘legal competency’. It requires an overall understanding of legal practice and individual clients and, most importantly, an ability to marshal both the legal aspects of the file and pragmatic operational principles to keep your practice safe and secure.

tberman@bermanassociates.net