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5 Tips For New Partners To Avoid Malpractice Pitfalls


Making partner may mean prestige, more money and new responsibilities, but it also brings increased legal liability when cases and client relationships end badly. As a full-fledged firm member, partners face pitfalls in a host of new issues that barely made their radar as associates.

At each stage of a matter, legal malpractice experts said, from first client contact to a final "thank you" email, new partners should be mindful about the potential legal ramifications of their positions, and do everything possible to head off trouble before it arrives.

Below, experts shared with Law360 five common malpractice pitfalls for new partners, and how to avoid them.

The Vague (or Outdated) Engagement Letter

Part of running a strong practice means heading off potential malpractice claims even before a matter is launched, and that means writing a bullet-proof engagement letter.

A good engagement letter clearly sets out the exact parameters of a matter, who or what entities are being represented, fees, and the attorney's exact responsibilities for the matter. A vaguely written or incomplete engagement letter, on the other hand, can easily come back to bite you.

Failing to be clear about who exactly is being represented — is it that newly formed LLC, or the individual partner who contacted the lawyer? — is another common trouble spot.

New partners should also familiarize themselves with the boilerplate language in their firm's standard engagement letter, and consider their responsibility for often-overlooked issues like arbitration clauses, joint representations, rights to withdraw, conflict waivers and document retention. Make sure the client reads them as well.

Another defensive strategy new partners often overlook: Once a matter has concluded, put it in writing to the client, along with a "thank you" for the work. The letter is a good client management tool — and starts the statute of limitations countdown.

"As long as the engagement is continuing, the statute hasn't started running, which means they could sue you much later, which obviously is not good," said Laurie Carr Mims of Keker & Van Nest LLP, a commercial litigator with experience defending lawyers against malpractice claims.

The Unforeseen Conflict

Because most associates at big firms rarely generate new work, they can be naive about the importance of conflict checks at the outset of a case. But malpractice experts say too many new partners also think getting through the firm's conflict check process once means the task is over, potentially opening themselves up to claims if later conflicts crop up.

At each and every stage of a case — be it a discovery request, a sale of a client's affiliate company, or the issuing of third-party subpoenas — the partner should be vigilant about checking that new conflicts have not arisen. Failure to do so can have serious ramifications in a later lawsuit brought by the client.

The Over-Sell

While BigLaw associates and partners are increasingly siloed and specialized, there are still plenty of opportunities for new partners to get in over their heads, over-sell their expertise, and open the door to legal trouble.

The common sense advice: Know your strengths and limitations, and refer work outside your wheelhouse to another partner.

New partners in particular, Mims said, should be cautious when dealing with existing clients, and allowing their desire to please to cloud their own judgment. In the event a malpractice claim is made, that same client will likely be able to find other attorneys with deep knowledge on virtually any topic, and argue that the partner's own expertise fell far short.

"You may feel indebted to the client ... and give them some off-the-cuff advice they take to be legal advice," she said. "It's a slippery slope kind of issue, but once you're in that realm, you're going to be held to that standard of care."

The Bad Manager

A partner is responsible, professionally and legally, for the work of the associates he or she supervises. Not surprisingly, malpractice claims commonly include allegations that a partner failed to staff properly or otherwise manage the case.

The advice extends throughout the partner-client relationship: Keep all doors of communication open, set expectations about bills and trouble spots and ask for prompt feedback on anything of concern.

Creating a paper trail is also key. Minter suggests that partners instruct their associates to "blind cc:" email the partner on every communication with the client and opposing counsel, even on mundane issues, and turn on the "read receipt" email function, which lets an email sender know when a recipient has opened a message.

The Risky Client

Perhaps the most effective strategy for avoiding malpractice claims is to turn down prospective clients that seem likely to bring a future lawsuit. But new partners under pressure to prove they can bring in new work too often ignore the signs that a client spells trouble.

If a trusted source refers a potential client, take the time to discuss what that person knows about their history before agreeing to take a case.

A client that has jumped from lawyer to lawyer to lawyer on the same matter is an obvious red flag. Previous frivolous suits, fee disputes, and excessive complaints about the legal profession are also warning signs.

Unreasonable expectations for a perfect outcome and inflexible deadlines should also give new partners pause.

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About Laurie Mims
Ms. Mims has extensive experience litigating complex civil and white collar criminal matters. She has tried a variety of cases, including several as first chair. Ms. Mims has represented institutional and individual clients in a wide range of industries, including health care, biotechnology, financial services, software development, venture capital and telecommunications. She has successfully defended these clients from claims involving the False Claims Act, the Anti-Kickback Act, breach of contract, breach of fiduciary duty, fraud, theft of trade secrets, employment discrimination, copyright and trademark. She has also represented individuals in matters with the Securities and Exchange Commission and the Department of Justice, as well as numerous national law firms in professional negligence cases.