Hey, let’s be careful out there

By James Dimos

Well before Aaron Sorkin shaped my viewing habits, Steven Bochco’s Hill Street Blues was one of the few appointments I had with the television. For those that do not remember the show, it told the story of the offers in a police precinct in a Midwestern city (likely Chicago, though it never comes out and says it). Most episodes opened with the patrol officers sitting in roll call, conducted by a crusty sergeant named Phil Esterhaus. The information he shared either served as foreshadowing for an upcoming story line or provided a degree of comic relief. No matter what though, the roll call ended with the same firm admonition from Sgt. Esterhaus: “Hey, let’s be careful out there.” It is advice to be heeded by lawyers as well. In the aftermath of the 2008 recession, insurance carriers reported an increase in legal malpractice claims. While those same carriers are now reporting a leveling off in the number of new claims, the fact remains that lawyers are being held responsible for their errors through the civil legal system as well as the disciplinary process. In the latest study by the American Bar Association of legal malpractice claims, which looked at over 58,000 claims during the period from 2008 through 2011:

  • The top four practice areas for malpractice claims were real estate, plaintiff’s personal injury, family law, and estate/probate. Those four practice areas accounted for 59% of the reported malpractice claims.
  • Claims involving substantive errors made up 45% of the total claims. Administrative errors (such as missed deadlines or clerical errors) were second at 30% while client relations (such as failure to obtain consent or follow client instruction) made up 15% of the claims. Finally, 10% of the claims were the result of intentional acts by lawyers—fraud, theft, or abuse of process.
  • The most frequently cited error against lawyers was the “failure to know/properly apply the law,” making up 14% of all claims reported in the study. The next most frequently cited errors were “procrastination in performance” (10%); “inadequate discovery and investigation” (8%); “planning errors” (7%); and, “lost file, document, or evidence” (7%). Collectively, these five types of errors make up almost half of the claims in the study.

Many services provided by the ISBA and its partners can help you avoid these types of missteps. In partnership with outside providers, your membership allows you to access Casemaker, our online legal research tool that allows you to stay up to date on the latest cases and statutes, free of charge. The Association’s insurance partner, Ritman & Associates, can work to help you find reasonably priced professional liability coverage as well as provide additional education on risk management. Providers such as CLIO and GRM can provide efficient and reasonably priced practice management and document management solutions. The ISBA also provides programs and services itself that helps make you a better lawyer. Newer lawyers have the opportunity to participate in Mentor Match at no cost, our CLE-approved mentoring program that can provide the training to help avoid malpractice or disciplinary claims. All members receive access to three free hours of ethics CLE each year to keep current on ethical issues. Our monthly magazine, Res Gestae, contains articles keeping you up to date on various areas of the law. We continue to expand our reasonably priced CLE offerings to allow you to stay up to date on the latest issues in your practice without breaking the bank. Our Legal Ethics Committee offers a telephonic “hot line” to obtain input from knowledgeable practitioners when you face a question on an ethics issue as well as issuing periodic written opinions on the ethics issues of the day. We hope that you take advantage of these opportunities to improve your knowledge and manage your risks. Don’t become a statistic in the next ABA study and hey, let’s be careful out there.

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