Avoiding

Legal
Malpractice
James P. Kelaher, Esq.
Kelaher Law Offices, P.A.
Orlando, Florida
 The Initial Interview
 Ethics Opinion 88-6 allows non-
lawyer staff to conduct interview…
but…

 If at all possible, conduct the initial

intake interview yourself

 Evaluate the client, and not just the

client’s case
 Important Questions
 Is this their first consultation with an
attorney?
 Were they being represented by
another attorney?
 If so, why are they wanting to meet
with you?
 Clients seeking second opinions
should make you inquire why?
 Are they just wanting to retain an
attorney who is willing to tell them
 Interview the Client
 Trust your “gut” feeling
 Is there anything about the client
that makes you feel nervous?
 Do you pick up on any “warning
signs”?
 What are their expectations?
 Do you believe you can satisfy this
client?
 If not, graciously turn down the client
 If unreasonable, consider declining
 Investigate the Client
 Get a detailed litigation history from
them
 Have they filed more than one or two
lawsuits in the past?
 If a PI case, ask about all prior
accidents, even if they didn’t bring a
claim
 Ask them if they have ever sued a
lawyer before
 Get their SS# and check them out on
 Detailed Intake
Questionnaire
 Spend the time drafting a detailed
intake questionnaire – ask the client
to complete it before your initial
intake interview
 Some doctors snail-mail or e-mail
these questionnaires out to the
clients before the initial patient
examination – why shouldn’t
lawyers?
 Review their answers before meeting
 Initial Client Interview
 If you type the initial interview, print two
copies and let the client take a copy of the
interview with them
 Ask the client to initial or sign the copy
you retain after they have had the chance
to review it for accuracy
 If the client retains you, get them to sign
the retainer agreement on the first
meeting, copy it and let the client take a
copy of the retainer agreement with them
 Send them a confirmation letter, outlining
 No-Brainer Suggestion
 Make sure that you do not have any type
of legal or personal conflict
 Explain any personal conflicts
 If you have a personal conflict, don’t take
the case just to earn the fee
 If the client wants you to still represent
them, get a conflict waiver out of them,
but remember…
 Once the client knows of the personal
conflict, they will question your
representation if results not favorable
 Client Declination
 If you decline to accept the client’s
representation, or if they don’t hire
you, send them a declination letter
by…
Regular Mail AND
Certified Mail, R R R AND
E-Mail, asking for an
acknowledging responsive e-mail
 That Lawyer
Represented Me!
 Declination letter is important to protect you
AND to make sure the client’s interests are
protected so they can get another lawyer to
represent them
 Whether or not you represent a client is a
question of fact as to what the client thinks-
not what you think!
 It’s always a question of fact…don’t plan on
getting a S/J
 Client must have a reasonable factual basis
for believing you represent them
Did You Represent Him?
 Doesn’t matter that they never paid
you
 Doesn’t matter that there is no
contract
 Doesn’t matter that YOU didn’t think
you represented them
 Does matter that they shared
confidential information with you
 Does matter that they had a
reasonable basis to believe you
represented them
 Document Client
Interaction
 Technology
 Get the clients e-mail address, if possible
 E-mail – save all e-mails…perhaps in a

 Client Management Software – save e-mails

into the client’s file
 Save both incoming AND outgoing e-mails –
this eliminates the “He Said – She Said”
contests
 It will help you represent the clients
better….your memory is NOT like wine….it
doesn’t get better with age
 It will also help you share client
communiations with your staff
 Maintain Good Client
Contact
 #1 grievance against lawyers is for
failure to maintain contact with
clients
 While encouraging your clients to use
e-mail, nothing takes the place of….
 Talking for a few minutes with clients
when they call will improve the
attorney-client relationships, and
keep the clients happier
 Happy clients refer other clients to
you, and…
 Keep the Clients
Informed!
 Next time you get a copier, get one
with scanning capability – most all
new copier have that function for
little if any extra cost
 Scan and e-mail the client all
important documentation as you
receive it
 It’s quicker, cheaper, and makes the
client feel that they’re “in the loop”
 Conflict of Interest?

 Outline sets forth Rule 4-1.8 in detail

– save the outline, familiarize
yourself with it and give it to your
staff to read, as well
 Rule 4-1.8
 Business Transactions with Clients –
many “thou shalt nots” – read them
all
 Cannot use information learned from
a client to their detriment, unless
you’re being sued by that client for
malpractice
 Probate lawyers should know that
they should not make themselves or
their family beneficiaries of a will or
 Rule 4-1.8
 Don’t ask client if you can write a
book about them – or use them in
any other media
 When client asks to borrow money,
the answer you want to give – and
should give is… NO!
 PI lawyers can advance client costs,
but cannot loan living expenses to
clients

 Third Party
Compensation
 When Allstate, State Farm or some
third party or insurance company is
paying your bill, get client to
acknowledge in writing that you
informed them of that fact, but
nevertheless…
 Your ethical duty is to the client, not
who is paying your bill
 Always inform them they have the
right to hire their own counsel to
 Rule 4-1.8
 Don’t try to have client sign an
agreement which prospectively limits
your liability – leave that up to the
doctors!

 A lawyer cannot acquire any

proprietary interest in a client’s case,
other than the usual contingent fee
agreement, then you have to give
(and explain) the statement of
 Scope of Retention
 You need to have any representation
of any client in writing – remember,
no good deed goes unpunished!
 Always get every representation of
every client in writing
 Written agreement should set forth
the attorney’s compensation
 Does it set forth the attorney’s hourly rate
 Does it set forth the paralegal’s hourly rate
 Does Contract Explain
Costs
 Surprised clients are rarely happy
clients
 Does the contract set forth what the
clients will be charged for:
 Photocopies

 Faxes

 Long Distance
 Mileage

 Postage
 Client Retainers
 Contract should specify whether any
part of retainer is non-refundable, and
if so, how much
 Delicate balance: how much is your
retainer
 Is it enough to get your representation
started
 Is it too big so you’ll scare clients away

 Make sure the client knows that your

retainer does not cover your entire fee
 Have your bills include what is left of
 Don’t Let Fees Build Up
 Do your best to keep their retainers
in your trust account current – for
liability reasons, too
 Clients who owe attorneys money
are more apt to be unhappy with
you…and contemplate suing you as
an alternative to paying your bill
 There’s a reason professional liability
insurance companies ask you if you
have ever sued a client for a fee on
 Fees Owed – Sue or Not
Sue?
 Whether client is happy or not – and
especially if they are unhappy –
suing the client for your fee may
result in a counter-claim for legal
malpractice
 Suggest your local bar association
fee dispute committee as an
alternative to filing a lawsuit as a
client will more likely accept the
committee’s findings
Indefensible Malpractice
 Statute of Limitations
 Don’t wander outside your area of
expertise
 Immediately research SOL if you do

 Avoid out-of-state representation unless

you are licensed in that state
 Only defense to SOL is having to prove
that there was never an underlying
case, and the practical, but not legal
burden of proof will be on you
Indefensible Malpractice
 “Gotcha” Time Deadlines
 Cruise Line cases – 1 year
 Sovereign Immunity Cases – notice in 3
years and in Georgia it’s 1 year
 Medical Malpractice – 2 years from date
of discovery but 4 year statute of repose
 Product Liability – 12 year statute of
repose
 Numerous others – don’t stray outside
your area of expertise
 Implement Internal
Controls
 Staff education – send them to
seminars, too!
 Instruct your staff to avoid giving legal
advice – no matter how much you
trust them
 Review every document that is filed in
court
 Avoid delegating true legal functions
to non-attorney staff
 Risk Management
Controls
 Have more than one person monitor
important time deadlines
 Spend an hour or two a month
reviewing all client files with your
staff
 Client database software helps stay
on top of cases
 Client Profiles -Pro Doc
 Prevail
 Stay in your Comfort
Zone
 To research some issues is OK
 Having to research many issues is not
 If you can’t answer most of the
client’s questions during the intake
interview, punt!
 Referring the client to another
attorney more knowledgeable and
proficient in that particular area of
law, you’re probably doing both of
you a good service
Rule 4-1.1 Competence
 “A lawyer shall provide
competent representation to
a client. Competent
representation requires the
legal knowledge, skill,
thoroughness, and
preparation necessary for the
representation.”
 Professional Liability
Insurance
 We have ethical obligations to our
clients
 If you can’t write a check to your
client for the amount of damages
they may sustain as a result of your
negligence, then buy professional
liability insurance!
 Lawyers without malpractice
insurance do get sued, and
judgments are obtained
What To Buy & Where to
Buy It
 Do not buy “wicking” or “wasting”
policies
 It’s not necessary to buy large policy
limits
 Make sure your policy has coverage
retroactive to an appropriate date
 Check to make sure it’s an onshore
company that will be there when you
need it to be there – investigate the
 Which Company?
 Ask attorneys who defend
malpractice carriers to see who they
think does a good job
 Lora Dunlap at Fisher, Rushmer here
in Orlando is the most prominent and
probably best legal malpractice
defense lawyers in town
 FLMIC, Westport, Great American,
CNA (Gilsbar Pro) are among the
most reputable
 Deductibles?

 Get the highest deductible you can

afford
 Realize that in most policies the cost
of investigating the case and the
defense of the case does apply to
your deductible
 Frequently there is a break for “early
reporting” (i.e., $10k deductible, but
a $5k deductible for “early reporting”
 Report the Claim!
 When you get an “on notice” letter
from an attorney
 Forward it to your insurer immediately
 Inform the attorney of your insurer
promptly

DON’T BE AN OSTRICH!
 Why Report the Claim?
 If you don’t promptly report the claim,
your insurer may deny you coverage
 Insurers look for excuses to deny
coverage
 Section 627.4137, F.S. requires not
just your insurance carrier to notify
the claimant as to coverage, it
requires YOU to notify the
claimant of who insures you
 Don’t let a lawsuit force you to
 Represent Yourself?
 Remember the old quote: “An
attorney who represents himself has
a fool for a client”
 If you have coverage, promptly turn
it over to your carrier
 Don’t send anything to the plaintiff’s
lawyer without putting “Settlement
Purposes Only – Confidential” on
it
 Any other response could be
 Summary
 Be careful in interviewing the client
 Spell out in writing the scope of your
retention and confirm in writing
when you’re not representing anyone
with whom you’ve met
 Do your best to keep your client
informed and happy – and return
their calls
 Document, document, document
 Stay within your field of expertise
QUESTIONS
&
ANSWERS