Supervising Associate Lawyers to Reduce Malpractice Exposure

Supervising Associate Lawyers to Reduce Malpractice Exposure

In my previous blog post, “Hoarding and Dabbling, Oh My,” I wrote about how the pandemic has resulted in a swift and dramatic transformation of the legal profession. This transformation has created new risk management challenges for many law firms, including hoarding legal work and dabbling in new practice areas. This blog post will focus on another area that may expose law firms to malpractice liability: not properly supervising associate lawyers.

Associate Supervision

Working from home makes supervision of associates challenging. Law firms are not operating within the usual structure of how tasks are normally delegated, work product is reviewed, and productivity is measured. Whatever feedback loop or workflow process a firm has at the office for supervision may be difficult to implement or duplicate in a remote setting. The inability to rely on personal observation, or to drop by an associate’s office for a quick follow-up or to ask a clarifying question, makes it hard to gauge possible issues and provide feedback.

Newer and inexperienced associates may not know how to navigate a new practice area and may need help acquiring the requisite skills and knowledge to competently represent clients on behalf of the firm. Without proper guidance and supervision, associates can make errors that end up exposing the supervising lawyers and the firm to not only malpractice claims but also to ethics complaints.

Supervision is not reserved only for inexperienced lawyers. Even seasoned associates may encounter new challenges, such as conducting remote depositions, which can lead to mistakes or omissions. Proper supervision of associates—both junior and senior—help law firms to provide the guidance and support they need and also to identify and prevent small mistakes from blossoming into harmful and costly malpractice claims. Below are some tips on supervising associate attorneys while working remotely.
  • Meet regularly with each associate – Do one-on-one check-ins with each associate at least once a week. This can be done by phone or video call. Check-in serves two purposes. One is to obtain a status update on their individual projects and cases, and get and provide feedback. The second is to build trust so they can feel safe opening up about challenges at home or in their personal lives, or any issues that may impact the quality of their work. It allows them to ask you questions about the substance or strategy of a case they are handling. This feeling of safety comes from knowing that you won’t penalize them for being open or asking for help, and that you will work with them to help them be successful.

  • Be transparent about your availability – Let associates know that they can contact you at any time (or whatever time frame is reasonable to you during the workweek), and that they do not have to wait until their check-in to talk with you about an issue on their case. Dispel any fears or hesitation they may have in approaching you about a concern or seeking your advice or assistance. This reassurance will help prevent an issue from becoming bigger and turning it into a malpractice mistake that exposes your firm to liability. If you’re not available to them at the moment, let them know (even by email) that you’ll get back to them first thing tomorrow or whenever you will be available.

  • Review legal work product – For newer associates, make sure you review all their pleadings, motions, memos, and other legal documents before they are filed or sent out. Look over their work product not only for typos and grammatical errors, but also for substantive mistakes in their understanding, analysis, and application of the law. Follow up review with constructive feedback that can serve as a training opportunity for the associate. Exercise judgment as to whether experienced associates need the same kind of review as newer associates.

  • Provide support and guidance – Beyond the written work, provide support or guidance for lawyers who are doing something for the first time, such as taking a remote deposition or attending a virtual mediation. Guidance and support can take many forms. One is helping associates build confidence in their ability to perform the task. This can be done by explaining and demystifying the process for them, explaining the parties’ or witnesses’ roles, going over issues that will be raised during the event, or providing guidance on whether to write out the questions. It can also take the form of you or another experienced lawyer at the firm being present with the associate at the event and providing feedback afterward. Talk to the associates and ask what they need and how you can support them so they can competently and confidently represent the firm’s clients.

  • Encourage associate-to-associate contact – Supervising attorneys should encourage associates to establish a virtual connection with other associates at the firm and have regular meetups among themselves, without the partners present. This contact can become a forum where newer associates could get “stupid” questions answered by more experiences associates and not feel as self-conscious as they might going to a partner with the same questions. It also has the added benefit of solidifying and maintaining firm morale, which is hard to do during COVID.

  • Measure results – Having associates report on their weekly activities will tell you about the volume of their workload or how busy they may be, but it does not really tell you how well they are performing. Looking at a billable hours, time records, and number of cases are all necessary to measure productivity. But being productive doesn’t equate to producing quality work. It’s also important to look at actual results, not just the activity itself, to accurately measure the quality of their performance. Are they meeting deadlines? Are they responding to emails? Are they participating in meetings? Are they proactively communicating with you? Are they turning in high-quality work product? Working remotely is a great opportunity to shift from tracking activity to measuring results that can impact your firm’s liability exposure.

A word of caution: Proper supervision does not mean micromanagement. Watching associates like a hawk is a quick way to demoralize them and hurt their productivity, efficiency, and incentive to do excellent work. Micromanaging associates also deprives them of the opportunity to develop their own independent judgment and to grow as a professional. Providing a balance of independence, support, communication, and review will be more effective at helping associate lawyers reduce both their and the firm’s malpractice exposure.

For law firms that are looking for guidance on supervising staff, please check out our blog post on this topic available here.

Special thanks to Tanya Hanson for her contribution to this blog post.

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