Top Three Mistakes That Result In Legal Malpractice Exposure
Legal malpractice cases are on the rise.
Here are three of the top mistakes that get attorneys into trouble:
Non-Code Compliant Fee Agreements
Regardless of how California attorneys charge their clients (e.g., hourly, contingency, hybrid, flat fee, etc.), attorney-client fee agreements must comply with the California Business & Professions Code and California Rules of Professional Conduct. If you have not recently reviewed your standard fee agreements to ensure they comply with the law, you should do so before you sign up another client.
Lack of Conflict Waiver
Whenever an attorney represents more than one client in a matter, the attorney should probably get the clients’ informed written consent before proceeding because there are likely potential conflicts of interest (and maybe actual conflicts of interest) that should be disclosed. The failure to get a proper written conflict waiver can result in a court voiding the fee agreement (including a binding arbitration clause), legal malpractice exposure, and State Bar discipline.
Failure to Warn
When a client hires an attorney for a particular matter and during the representation the lawyer learns of facts that raise another issue, the lawyer is obligated to warn the client about that issue. For instance, if a client hires a lawyer to address another lawyer’s mistake (e.g., a lease was badly drafted, and now the client is in litigation with the tenant because of the drafting error), the second lawyer should warn the client about a possible malpractice case against the first lawyer and that there is a one-year statute of limitations that applies to that potential matter. The law does not require the second lawyer to evaluate or pursue the legal malpractice case – the obligation is to warn. The failure to warn can result in legal malpractice exposure.
If lawyers address these three issues in their practice, they will significantly decrease the likelihood of getting sued.