When I was younger
I wish that I knew what I know now
When I was stronger
“Ooh La La” by The Faces
As the Oregon legal community welcomes its newest lawyers to the Bar, I find myself reflecting on my own time as a young attorney and what I wish I had learned back then. With each crop of new admittees, I am reminded that no one taught us about malpractice risks in law school. Many lawyers practice law without really understanding some of the risks that could result in potential malpractice claims. I sat down with Bradley Tompkins, one of our claims attorneys here at the PLF, to ask him about the most common risks he sees when handling claims. Brad has been with the PLF for over 10 years and brings a wealth of knowledge and experience to this conversation.
Hello, Brad. Thank you for making time for this interview and also providing the perfect lyrics to set the tone for this blog post. It got me thinking—what advice would I give to my younger self back when I first started practicing law?
Well, to avoid malpractice, it first helps to know what malpractice is. Malpractice is an error made in providing professional legal services—that is, a mistake in the advice or performance of your duties and obligations as a lawyer. Not all mistakes are necessarily legal malpractice. I would encourage folks to read the PLF Primary Coverage Plan for more information. And, of course, you are always welcome to call us at the PLF.
Are there any malpractice issues you see regularly? If so, how would you advise attorneys to avoid them?
Dabbling in unfamiliar practice areas is something we see. As lawyers, we want to be helpful. But it can be problematic when an attorney takes on a matter involving an area of the law where they have little or no experience. A related situation is when a new issue arises that the attorney does not have much or any experience handling.
What can lawyers do in those types of situations?
I think it’s most helpful to reach out to other practitioners and/or Bar groups for more information to understand the issues and potential risks. It could be in the client’s best interest to refer them to another lawyer who does have the relevant experience.
What other practical advice do you have for lawyers wanting to enter a new practice area?
It’s best to do this deliberately and with adequate time for self-education. There are many ways to responsibly grow into new areas of law. Finding a mentor or co-counsel to associate with is a great start. Informational interviews are another often neglected way to gain insight from other experienced practitioners.
Are there other resources you think would be helpful for lawyers in this situation?
Yes. As I mentioned earlier, joining a Bar section for a particular practice area, or becoming a member of an organization like the Oregon Trial Lawyers Association or Oregon Association of Defense Counsel, are really smart ways to connect with a community of experienced lawyers. Many of these sections/groups have active listservs where members can learn from the informal discussions or ask for guidance. Other resources include substantive law CLEs offered by the Oregon State Bar, free publications on BarBooks (online law library for OSB members), and volunteering at nonprofits that offer coaching. For example, some immigration nonprofits hold legal clinics where volunteers can receive training while providing pro bono help to others.
What is another common malpractice risk, Brad? And what underlying issues contribute to that risk?
Lack of consistent and reliable office systems, particularly for high-volume practices. A busy practice is great, but it also is ripe for potential errors. One of the number one issues we see in claims is the breakdown of the attorney’s office system for calendaring important dates.
Are office systems issues unique to a particular firm size?
No, they occur across the board in solo practices, small firms, and large firms alike. If you have a high-volume practice, it’s imperative that you put effective systems in place to docket important dates. We also strongly recommend that lawyers file early whenever possible to avoid potential issues with statutes of limitations or statutes of ultimate repose. The PLF practice management attorneys are a wonderful source of information for improving your office systems.
Brad, thank you so much for your time. I really appreciate your sharing these insights.
An important takeaway from this interview with Brad is that malpractice risks can be avoided. The first step in malpractice prevention is to be aware of the common causes, such as dabbling in new practice areas and office system failures. The Practice Management Assistance Program (PMAP) offers a wide variety of resources and confidential assistance in developing and improving law office systems, procedures, and processes. We encourage you to reach out for help with managing your practice! Contact the PMAs at 503.639.6911 (toll-free at 1.800.452.1639) or on our website.