Practice Management Strategies Part 1
Arbitrate disputes with clients whenever possible. If the laws and ethical rules of your state permit arbitration or mediation of fee and other types of disputes between lawyers and clients, it is advisable to use the binding arbitration vehicle whenever possible. Not only will this type of proceeding avoid a lot of unwanted publicity for your law firm, it will also tend to head off client malpractice claims.
Some state or local bar associations provide arbitration processes for lawyer-client disputes. Alternatively, the arbitration remedy can be introduced and addressed in the initial engagement letter or retainer agreement. In order to hold up legally, any arbitration provisions should be eminently fair to your client.
Don’t take on cases or matters you’re not prepared to handle. Before deciding or agreeing to take on a given matter, make sure you have all of the necessary resources already on hand and in place to handle the particular case. This includes having lawyers who have the requisite expertise and experience in the particular matter at hand, and who also have the available time and energy to taken on the matter.
Additional considerations include making sure you have the legal support staff, systems support, and financial resources on hand to take on the matter. Make sure the case will involve jurisdictions and venues with which you are thoroughly familiar.
Don’t overbook. Law firms that knowingly take on too many cases relative to the size of their lawyer and support staffs can be considered to be malpractice powder kegs. In these firms, the question is not if a professional liability claim will occur, but rather when the claim will occur, which is usually sooner than later. The inevitable by-products of unmanageable and unwieldy caseloads include mistakes, oversights, file neglect, client neglect, poor morale, and a revolving door of associates and clients.
Checklists and Forms
Use comprehensive checklists and standardized forms whenever possible. Some lawyers don’t like to use checklists and forms since they feel that the use of such denigrates the value of a lawyer’s analysis and input. However, from a risk management standpoint, if a lawyer is drafting a commercial contract, it is impossible for a lawyer or anyone else to readily identify the hundreds of issues which may need to be included and addressed in the contract without the aid of a comprehensive checklist of issues already at hand.
The effort expended in developing your firm’s proprietary practice area checklists in advance obviates the need to reinvent the wheel every month or so ad infinitum. Creation of the checklists can be a good project for summer interns or young associates. Besides helping to avoid a missed issue, which can quickly lead to an indefensible professional liability claim, use of standard forms and checklists a high level of consistency, which is one of the hallmarks of every successful and esteemed professional law firm.
Create an awareness of the importance of client confidentiality. In an age of ever increasing impersonal relations and business competitiveness, it is more important than ever that law firms take every possible precaution to mitigate against the chance of an inadvertent or knowing breach of client confidentiality. The first step in this process is making sure that everyone in your firm, especially including all of the non-lawyer staff, fully understands all of the ramifications of client confidentiality issues and breaches.
Create formal controls for safeguarding sensitive client related information. It is important that the law firm take all reasonable steps to protect confidential client information. This can include issues related to access to client files or computer records, and storing documents in a safe or other secure storage location. Clients generally are overly paranoid about what they consider to be their proprietary information, and are generally unforgiving if a client confidentiality is breached.
Accomplish multiple important goals during the initial interview. Perhaps the most important goal to be accomplished during the initial interview is to obtain enough information about the prospective client and the matter at hand to enable the lawyer to make a decision as to whether to accept or decline the representation. If the lawyer decides not to accept the representation, the prospective client should be clearly told so at the end of the interview. A follow-up non-engagement letter should be mailed to that individual within the following week, documenting that the lawyer is not accepting the representation, and encouraging the individual to consider seeking out other counsel.
Additional informational items to try to elicit and assess during the initial interview include gaining an understanding of the prospective client’s wants and needs, attempting to determine if the representation might create a conflict of interest, and assessing your client’s willingness and ability to pay the probable amount of the fee.
Formally address all aspects of the representation in advance. To the extent that critical aspects of the representation are not clearly and formally addressed in advance, right at the outset of the representation, you can expect to have a plethora of problems down the road. The most important aspect to agree on at the outset, and to document in a prompt engagement letter to your client, is the scope of representation. It is important to set out in writing exactly what legal services you will be rendering.
Even more important is to clarify exactly what legal services you will not be providing. For example, if you are rendering legal services in a real estate transaction, or the sale of a business, or a divorce, it is critical to address the issue of whether or not you will be providing attendant tax advice. There should also be an agreement to the extent possible as to the amount of the fee and when the fee will be billed and paid.
Depending on the practice area and the nature of the matter, it is advisable to surface every known issue that is relevant to your relationship with your client, and address it in advance. Even though that may seem awkward or unpleasant at times, clients expect and appreciate a businesslike, professional approach. You can also be sure that any issues you do not address in advance will not go away, but assuredly will resurface at a later date, invariably in a much more complex and troublesome form.!
Disclaimer: Perspectives is published as a service to lawyers. While the information contained herein is believed to be reliable, readers are advised to consult their own legal and insurance counsel for assistance in applying it to their unique situations.