Distinguishing between Legal Competency and the Ability to Avoid Malpractice

Lawyers very often feel that their competency as an attorney is sufficient to protect their practice from errors and omissions liability claims. Actually, and unfortunately, the two elements are often quite disparate, as a recent study performed by BERMAN & ASSOCIATES, clearly demonstrated. This was a study of  60 law firms over a two year period of time involving over four hundred such claims. That study found that only about one third of the professional liability claims made against lawyers were actually grounded in questions of lawyer (in)competency; 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 forty percent of that two thirds portion was related to ministerial issues, primarily missing dates and deadlines or staff error. What was left-over, had little or nothing to do with the capability of a lawyer to handle a legal issue. Instead, it had to do with everything from a poor choice of clients in the first place to a misunderstanding of the role that the attorney would play in the representation, to poor management skills. All this might be termed the overall “legal landscape.”

Of course, 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: an understanding of the legal environment (the courts and the legal system), the actual law as it is written, and 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 being drawn, a well documented American Bar Association Study found that the attitudes of the client toward their attorneys were quite different from what one might very well believe to be the case. In a large and fairly representative sampling, clients were found to believe that the most important thing involved in their representation was the sense that the lawyer “cared” about the outcome. In some cases this seemed to overshadow even the actual result 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 “give-aways” as to the issues involved. They might say that the problem was in the difficulty 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 a host of other factors. In fact, as these statistics demonstrate, the actual advices 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.

The message to lawyers who seek to avoid such circumstances is therefore to look for, and try to control the ancillary factors involved in representation. These are the things never taught in law school: the need to create (and have signed) a binding contract; the need to spell out the issues for the client in writing beforehand so that there is no possibility of confusion or misunderstanding; the need to ask for help from a colleague when undertaking representation; the need to train and have trained lawyers and staff in the office; the need and the ability to manage time and to manage the client. The list of matters to understand and address is long indeed. What is most important, however, is the understanding that to avoid professional liability claims there is more than generally understood “legal competency” involved. It involves an overall understanding of the law practice, the clients and most importantly, an ability to marshal both the legal aspects of the file as well as the pragmatic operational principles to keep your practice safe and secure.



Copyright 2011 BERMAN & ASSOCIATES