Professional Liability

A critical aspect of the practice of law is managing risk. Attorneys routinely evaluate and advise clients of the risks associated with representation matters, but it is equally important for lawyers to manage their own risks arising from their practice. Risk management begins at the outset of the representation and should continue until the representation concludes. 

The first critical step in risk management is client selection. Attorneys should choose their clients as carefully as clients select their lawyers. The lawyer should consider the reasonableness of the client’s expectations, the client’s motivations, the client’s ability to pay and other factors in deciding whether to accept the representation. The lawyer must complete a conflicts analysis and be able to competently represent the client. Once the lawyer accepts the representation, an engagement agreement should be prepared and signed by the client which details the identity of the client, the scope of the engagement, the fee arrangement, and file retention and destruction procedures.

Risk management continues throughout the representation. Attorneys should remain in regular communication with their clients, managing client expectations and keeping clients updated on developments that impact earlier assessments of the matter. The lawyer must explain the matter sufficiently to allow the client to make informed decisions regarding the representation. Even if there are no major developments, it is a best practice to regularly check in with your clients. Attorneys should have processes in place to calendar deadlines and supervise staff working on matters.

At the conclusion of the representation, attorneys should provide clients with a disengagement letter, communicating in writing that the representation has ended. If you fail to affirmatively end your engagement, you may still be engaged. 

By following these best practices throughout the representation, you may be able to avoid legal malpractice claims or disciplinary matters or, at a minimum, set up a strong defense should problems later arise.
 

_{Legal Update for Lawyers’ Professional Liability – January 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}