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How to Minimize Risk of Malpractice as a Solo Lawyer

By William Vogeler, Esq. on August 23, 2017 | Last updated on March 21, 2019

One of the hallmarks of good advocacy is to see a case from both sides.

Like being the devil's advocate, it helps to see the strengths and weaknesses of a situation. This is especially appropriate when it comes to assessing the malpractice liability of your law practice.

So consider your liability from an insurer's point of view because virtually every carrier will ask these questions to assess your risk of malpractice:

Does Your Firm Have a Calendaring System?

If you have a calendar, get another one. It's about back-up.

Every lawyer should carry a calendar, and every office should have another one. If they are electronic, they should be synchronized daily. Paper calendars work, too, and paper does not crash.

Once a calendaring system is in place, it needs to have every event that could invoke a legal consequence. Court dates, filing deadlines, depositions, etc.

Lunches, golf dates, not so much. Separate personal and legal because, among other concerns like mix-ups, you don't really want to have to produce your personal calendar in discovery, do you?

Which Conflict Avoidance System Does Your Firm Use?

In a solo practice, it can be easier to avoid conflicts than in large firms because the solo lawyer should know all of his or her clients. But relying on memory is not a conflict avoidance system.

You need a client list or index that you can quickly reference. If you have all your clients in your cell phone contact list, that'll work.

But a computer system, with a searchable data base, is better because your phone contacts typically do not include enough information to sort out all possible conflicts. Your computer can search files for those names that may not be in your contacts.

What Kind of Engagement Letters Does Your Firm Use?

When it comes to professional liability, long gone are the days of handshake deals. You need at least an engagement letter, a retainer agreement, a non-engagement letter and a termination of engagement letter.

These letters should define the scope or your representation, i.e. what you will do and what you will not do. They need to include important dates, like statutes of limitations, and clearly identify client/attorney relationships.

The central document is the retainer agreement. Your state bar association probably has a free example online, and it will no doubt include liability-limiting disclosures and ethical requirements. From a professional liability standpoint, it may be your most important document when taking a case.

Of course, malpractice insurers will want to know if you have ever been disciplined or had any malpractice claims against you. In every case, competence should be your watchword.

But if you have good calendaring, conflict avoidance and engagement letters, you will have reduced your risk of malpractice. And that's what you want, even if you don't have insurance.

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