Reprinted with permission of Trial (October 2015). Copyright American Association for Justice, formerly Association of Trail Lawyers of America (ATLA®)

Avoiding Malpractice: 10 Tips for Supervisory Attorneys

The ABA Model Rules of Professional Conduct set out guidelines for attorneys who may be held liable for their subordinates’ actions. Here are some policies you can implement to help protect yourself and your team.

By Jefferey Ogden Katz and Eric J. Chisholm

Even attorneys who carefully ensure that their professional conduct meets or exceeds applicable standards of care may not be doing enough to protect against potential claims. In addition to their own conduct, attorneys may be held liable for the negligence of their partners, associate attorneys, and staff. To prevent this, it is essential to develop and follow clear policies.

Rule 5.1 of the ABA Model Rules of Professional Conduct establishes attorneys’ supervisory duties.1 A violation of the rules—or their locally adopted counterparts—generally cannot independently sustain a cause of action for legal malpractice.2

But courts in at least nine states have acknowledged that the rules provide a minimum standard of care, and violations may serve as evidence of deviations from the applicable standards.3 Failure to comply with Rule 5.1 can provide the basis for a legal malpractice claim against an attorney for a subordinate’s conduct.

For instance, a New Jersey court held that a firm’s partners could be found negligent for failing to properly supervise an associate attorney’s cases.4 Similarly, the Southern District of Texas has held that a managing partner can be found liable for malpractice for negligently failing to supervise the firm’s associate attorneys even if the partner had no direct involvement in the case that led to the claim.5

A federal court in D.C. found that supervisory duties extend beyond a supervisor’s jurisdictions of licensure—a firm’s partners could be liable for an associate working in a jurisdiction in which the partners were not licensed to practice.6 And liability doesn’t stem solely from an attorney’s actions. In Delaware, an attorney was suspended for six months due to his non-attorney staff’s negligent handling of firm books and records.7

Here are some steps that every firm, partner, and supervising attorney should consider to limit Rule 5.1 liability. Keep in mind that to maximize the benefits of each proposed step, you may need to modify these policies to suit the size or structure of your office. 

  1. Implement firm-wide policies. One of the best ways to avoid a violation is to implement and uniformly apply firm-wide policies for appropriate associate and staff supervision.

  2. Appoint a firm ethics chair. Have an experienced attorney within your firm act as an ethics chair. Designating one person for this role will encourage attorneys and staff members to raise questions. Your ethics chair should participate on a local bar association’s ethics or professional responsibility committee and regularly present or distribute case law updates to the firm.

  3. Create a mentoring program. Remember that young attorneys do not always have the intuition or experience to foresee problems, and they almost always have more questions than they are willing to ask. When young attorneys are unsure of what to do in a situation, they may be inclined to do or say nothing. Help them avoid problematic situations through a mentoring program, which can foster positive communication and provide them with a safe resource for questions they might hesitate to ask.

  4. Have an open-door policy. Encourage partners and supervising attorneys to expressly welcome questions and communication from associate attorneys and staff members. Young attorneys or staff who feel they are bothering a supervisor are less likely to seek consultation for a potential problem. People who fear extreme repercussions for a mistake may attempt to cover it up. It is better to hear about a problem from within the firm than to receive a carrier-notice letter out of the blue.

  5. Screen your clients. During the screening and intake stages with prospective clients, consider the working relationship you’ll need to maintain to successfully represent them. If a prospective client is uncooperative or reluctant to provide complete information, consider whether you would feel confident making representations to the court based on the information they have given you. If you see pitfalls, it may be best to avoid the situation completely and decline representation.

  6. Draft clear engagement letters. The engagement letter formalizes the establishment of an attorney-client relationship, so do not draft these in haste. It is an important piece of communication between your office and your client that can be essential for setting realistic expectations. Draft clear and careful engagement letters to avoid issues stemming from questions about the scope of representation, and stay apprised of local and area-specific rules on proper engagement terms. Think about how costs will be addressed during litigation. If expert witnesses are necessary, who will retain them? For any potential appeals, how will those costs be handled? If you are representing someone on behalf of a partnership or corporation, ensure that the client is clearly identified. Are you representing the LLC as an entity, one of its members, or all LLC members individually? And limit your scope specifically to the representation covered by the engagement agreement.

  7. Employ redundancy. In addition to whatever system your firm uses to track court dates and deadlines, encourage all attorneys to maintain a separate, independent method for tracking their own case dates and deadlines. This will help ensure a date or deadline is never missed.

  8. Have one staff person accountable for filings. Simplify your court filing process as much as possible, and implement a policy for clearly communicating the status of filings among your attorneys and staff. An attorney should not consider a filing complete until receiving confirmation of the filing from the court. Have one staff person accountable for filings, or if that is not possible, have the lead attorney or assistant responsible for all filings in one case to keep things streamlined.

  9. Institute a peer-review program. Hold regular case-review meetings. Select firm cases randomly rather than letting attorneys choose the cases they want to review (they’ll always choose the cases in the best shape). Have attorneys take turns presenting the status of their cases, the steps being taken, and any possible roadblocks. Ask other attorneys to attend these meetings and contribute. This will encourage a culture of collaborative problem-solving and open communication.

  10. Make technology a priority. Technology evolves quickly, and firm employees use technology in drastically different ways. Conduct training programs for attorneys and staff members on how to use technology so that everyone is on the same page, and create policies that require them to use technology responsibly. Associates and staff must understand that the rules apply to social media communications and blogs. Instruct them on the proper use of Twitter, Facebook, and any other means of electronic communication that they might use professionally, and beware of predefined headings in social media accounts for “specialties.”8 Technology can be an outstanding resource, but it also can expose the firm and its attorneys to risks if not used properly. In June, the Louisiana Supreme Court disbarred an attorney for improper use of social media.9

The practice of law is often risky. Developing and following good policies that ensure associate attorneys and staff members are communicating, receiving the support they need, and are properly trained is a great way to limit some of the malpractice risks.


Jefferey Ogden Katz is a partner and Eric J. Chisholm is an associate with The Patterson Law Firm in Chicago. They can be reached at jkatz@pattersonlawfirm.com and echisholm@pattersonlawfirm.com.


Notes

  1. Model Rules of Prof’l Conduct R. 5.1 (2014).
  2. See, e.g., Nagy v. Beckley, 578 N.E.2d 1134, 1137 (Ill. App. Ct. 1991); Tew v. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 655 F. Supp. 1571 (S.D. Fla. 1987).
  3. See, e.g., Day v. Rosenthal, 217 Cal. Rptr. 89 (Cal. Ct. App. 1985); Fishman v. Brooks, 487 N.E.2d 1377, 1381 (Mass. 1986); Carlson v. Morton, 745 P.2d 1133 (Mont. 1987); Smith v. Haynsworth, Marion, McKay & Guerard, 472 S.E.2d 612 (S.C. 1996); Hizey v. Carpenter, 830 P.2d 646, 654 (Wash. 1992); Greenwald v. Eisinger, 118 So. 3d 867, 871 (Fla. Dist. Ct. App. 2013); Pollen v. Comer, 2007 WL 1876489 at *10 (D.N.J. June 28, 2007); Booth v. Davis, 2010 WL 4160116 at *8 (D. Kan. Aug. 31, 2010); Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 87 A.3d 534, 545 (Conn. 2014); Flaherty-Wiebel v. Morris, Downing & Sherred, 384 Fed. App’x 173 (3d Cir. 2010).
  4. Gautam v. De Luca, 521 A.2d 1343, 1347 (N.J. Super. Ct. App. Div. 1987) (the associate’s work performance was limited because of illness or disability).
  5. F.D.I.C. v. Nathan, 804 F. Supp. 888, 897–98 (S.D. Tex. 1992).
  6. Anderson v. Hall, 755 F. Supp. 2, 5 (D.D.C. 1991).
  7. In re Bailey, 821 A.2d 851 (Del. 2003).
  8. N.Y. St. Bar Ass’n, Ethics Op. 972 (2013) (“A law firm may not list its services under the heading ‘Specialties’ on a social media site. A lawyer may not list services under that heading unless the lawyer is certified in conformity with the provisions of Rule 7.4(c).”).
  9. In re Joyce Nanine McCool, 2015 WL 3972684 (La. June 30, 2015).

See more at: https://www.justice.org/magazine-article/trial/2015-october%E2%80%94professional-negligence/avoiding-malpractice-10-tips-supervisory#sthash.GhXC6UhH.dpuf

 
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