The most common factors leading to legal malpractice claims

Summarizing the discussion during an ABA panel discussion held in Chicago last Thursday, an article published in Friday's Chicago Law Journal states that the top mistakes that lead to malpractice claims are:

--Poor communication between lawyer and client, resulting in disparate understandings of the arrangement.

--Missed deadlines through bad calendaring or failure to know deadlines.

--Poor investigation that misses basic facts.

--Failure to catch errors in work delegated to assistants.

In personal injury cases, blowing the statute of limitations leads the way in malpractice errors, either because the attorney entered the wrong date in the law firm's or lawyer's calendar, the attorney waited for the very last day to file or because the attorney did not know statutory deadlines. Any of these can be used to support a claim of incompetence under Rule of Professional Conduct -- although it is unlikely that a one time ocurrence by itself will result in such a finding.

The second most common reason for malpractice complaints is be familiar to students of Professional Responsibility: the failure to decline the case in time for the plaintiff to find another lawyer. Often a lawyer doesn't make it clear to a potential client whether the lawyer agreed to take the case or is just looking it over. And the lawyer never gets around to actually rejecting the representation.

Evidently, both of these mistakes are pretty basic. In fact, I cover both of them in the classes I teach. In Torts, a first semester class, I tell my students that buying a calendar and learning how to use it is the fist thing they should do after they get a job and that missing the statute of limitations is the dumbest thing they can do. In Professional Responsibility, a third semester class, we cover the issues related to the formation of an attorney-client relationship by discussing the famous case Togstad v. Vesely, Otto, Miller & Keefe which illustrates the importance of letting a client know clearly the decision not to agree to the representation. If a second year law student knows not to make these mistakes, there is no excuse for attorneys in practice to be making them.