Common Malpractice Mistakes Made by LawyersFebruary 2, 2022
Although the main work of attorneys entails representing their clients, it is common for them to find themselves in deep trouble. Legal malpractice refers to a lawyer’s negligence, implying a fiduciary duty or a breach of contract.
According to the ABA (American Bar Association), an attorney’s chances of being sued annually is about 4% to 17% based on their practice area and jurisdiction. Fortunately, law firms, including medical malpractice attorneys, can avoid costly malpractice errors by analyzing and understanding the following common mistakes linked to malpractice.
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Failure to Apply or Understand the Law
According to the American Bar Association, failure to understand or apply the law tops the list of common malpractice mistakes conducted by lawyers, representing 11.3% of all cases. In this error, an attorney conducts the research but fails to understand the right principles. This error may also occur if a lawyer doesn’t know the legal principles applied.
One of the major causes of this mistake is usually working individually and failure to consult other lawyers when presenting a case. If a lawyer wants to avoid this mistake, they should consider adopting a more team-oriented approach.
Misuse of Funds
If clients pay a retainer, their lawyers should place the funds into a trust account. In most jurisdictions, the cash placed in the account is usually perceived as the client’s property. When a lawyer places the client’s funds in their personal account, this may be considered as misuse of finances.
Lawyers should avoid the habit of placing clients’ money on their individual accounts due to temptations to use the money. Moreover, stealing from a client is the most extreme instance of legal malpractice.
A lawyer can make a planning mistake in various ways. For instance, an attorney may be involved in a contested case whereby they have sufficient facts and knowledge but make a judgment mistake on the method of handling the client’s matter.
Typically, these mistakes are strategic errors based on a lawyer’s judgement. It is essential to note that this category is not applicable if the alleged mistakes happen due to a lack of knowledge and facts that the lawyer could have revealed.
Lawyers should adopt all reasonable strategies when examining a case. Besides, it is also crucial to seek counsel from fellow lawyers. This enables them to have a clear understanding before devising a strategic plan to continue with the proceeding. Furthermore, seeking counsel from another counsel reduces the chances of making planning mistakes.
Conflict Of Interest
Conflict of interest arises when lawyers place their interests ahead of their clients. This scenario also occurs when an attorney puts a specific client’s interest ahead of another. These two instances are examples of legal malpractices.
Instances of conflict of interest include being in a personal relationship with an associate of the opposing party, including the other party’s lawyer or the client, failure to provide complete information, any form of intentional professional delinquency, working for a fraction of a client’s business transaction rather than a typical professional charge, and representing two parties on a similar side of a lawsuit that have contradictory interests among themselves.
Some rogue lawyers may choose to engage in fraud cases. Lawyers commit fraud when they deceive their clients or any other party involved in a legal proceeding to obtain illegal gains. If clients have any facts or evidence to prove a fraud occurrence, they may file a legal malpractice lawsuit against the lawyer.
Clients should be very cautious when choosing an attorney, regardless of the area they need representation. For instance, potential clients who intend to file malpractice claims should consider seeking medical malpractice lawyers free consultation from reputable law firms.
Inadequate Investigation or Discovery of Facts
This category entails a situation whereby a petitioner claims that specific facts that their lawyer in the investigation should have revealed were not discerned or identified. Since many experienced and reputable lawyers in their specific areas of practice have many ongoing cases, they may fail to allocate adequate time to discover all facts.
Lawyers should ensure that all valuable facts and pieces of evidence are explored and discovered in all their cases. Moreover, after gathering all the facts, a lawyer needs to revisit the entire case and all its elements at least once. This ensures that all documents, facts, and pieces of evidence are included in the case, avoiding potential malpractice mistakes.
Failure to File Documents in Cases where No Deadline is needed
There is no time limit by which an act has to occur to be applicable in this category. However, the filing of a notice or document is crucial to safeguard a client’s interest against the claim of another applicant. A common instance of this scenario is the requirement for filing a real estate or mortgage to safeguard the interests of the mortgage provider against parties acquiring a subsequent interest.
Having a good paralegal can help a lawyer mitigate this mistake by ensuring that these kinds of filling are finished. Besides, these mistakes can be costly, and the linked cases usually have an easily identifiable and determined dollar amount. Making sure that a paralegal understands such documents helps keep the lawyer accountable, helping them avoid this costly error.
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Having an Inappropriate Calendar Schedule
This scenario usually happens when an attorney had prior knowledge of a deadline’s existence but failed to initiate any form of calendar entry to remind other partners in the office or themselves. Furthermore, this form of housekeeping mistake is usually linked with the filing of documents, and it can have costly consequences.
As stated, an attorney needs to engage with their paralegals on lawsuits where it is necessary to correctly document events to guarantee accountability. This helps lawyers to keep correct and comprehensive records.
A lawyer needs to prioritize protecting the best interest of their clients. However, lawyers should also protect themselves to avoid making malpractice mistakes that may be costly. Attorneys can protect themselves in various ways, including being selective with cases, consulting other lawyers, getting insured, and maintaining meticulous documentation.
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