OSB Professional Liability Fund

Avoiding Malpractice

August 21, 2019
by Sheila Blackford

Loss prevention is the chief focus for the Practice Management Advisor program, which is carried out by four attorney practice management advisors or PMAs. Since the PMA program is within the Professional Liability Fund, the loss contemplated is malpractice or professional negligence.

Legal malpractice is best understood in the context of negligence. Just like covered in law school torts class, negligence has four elements:

  1. Duty;
  2. Breach of Duty;
  3. Causation; and
  4. Damages
Duty

Duty is the standard of care. The lawyer must use the care, skill, and diligence that ordinarily would be used by lawyers in the community in similar circumstances. A variation of the reasonably prudent person is the reasonably prudent lawyer in the community in similar circumstances. So it is important to examine duty in the context of the lawyer’s specific practice area and location.

Breach of duty

This is relatively obvious once you have determined duty. Breach of that duty owed to the lawyer’s client is the lawyer’s failure to satisfy that standard of care in representing the client.

Causation

Causation looks to the closeness of the connection between the lawyer’s action or failure to act and the injury suffered by the client along with the prevention of future harm to that client.

Damages

There has to be some harm to the client. The case that the lawyer handled negligently must have some value. The client must prove that the underlying case would have been successful but for the lawyer’s failure to act with reasonable care.

So in consideration of the elements of legal malpractice, what should the lawyer do to avoid committing malpractice?

By and large, malpractice claims result from the lawyer’s ignorance of the law, clerical error, procrastination, and frequently a combination of all three.

Ignorance

The lawyer can avoid this risk by becoming aware of the issues and deadlines as soon as possible. It may require thorough research to grasp these issues and to understand and abide by relevant deadlines.

For example, merely having a file tickler system to remind yourself about deadlines for various pleadings and motions and responses is not helpful unless you have the right dates and deadlines entered into your tickler system.

This may bring to mind Oregon RPC 1.1 Duty of Competence. How can you get competent? Study. Ask questions of more senior and experienced lawyers. If you are a new attorney, this may be challenging. If so, begin asking lawyers to name the top five family law attorneys or criminal defense attorneys, etc. As pointed out in Rule 1.1, you can associate with a more experienced lawyer. Consult your lists of top five attorneys and reach out to them for help.

We all start out with much unknown. The sooner we acknowledge that, the safer we become from stepping into a land mine we didn’t even know existed.

Clerical Error

These errors are frequently mistakes in docket control. Dates were overlooked. Cases were forgotten. It may be a miscalculation of deadlines or deferring filings to the eleventh hour, only to find you had relied on your client’s memory of when the accident happened.

Other clerical errors can be problems with mailing, such as overlooking the client’s new address or forgetting to affix the correct postage. It might be forgetting to get mail certified or date-stamped or failure to get post office receipts reflecting when the document was mailed.

There may be typographical errors. This may have serious consequences when you transpose numbers or omit key words. Maybe the typographical error was putting down the wrong name or overlooking the key clause or sentence. The action to prevent typographical errors is to slow down and proofread everything.

If the lawyer has clerical staff but fails to supervise or monitor them, the lawyer can be vicariously responsible. Delegate, don’t abdicate. And don’t scribble a hasty signature without reading the letter or pleading. See Oregon RPC 5.3 Responsibilities Regarding NonLawyer Assistance.

Procrastination

Lawyers by their very nature are competitive and want to excel. But sometimes worry takes over and becomes anxiety to such a degree that the lawyer becomes frozen in inaction.

It is not surprising that procrastination results when the lawyer encounters an unfamiliar area of substantive law,  a truly difficult client, or a case that is somehow not engaging. Frequently, the case that you push out of sight on your credenza is often the case demanding attention.

Procrastination can become self-sabotage. If you find yourself procrastinating, it may be helpful to visit with one of the Oregon Attorney Assistance Program attorney counselors. This may be especially helpful when your failure to get rolling is indicative of some emotional blockage.

If this doesn’t ameliorate the problem, one of the PMAs can assist you in developing some good habits such as tackling the tough stuff first and breaking a difficult task down into smaller, more manageable steps.

Have you heard about The Pomodoro Method? You work on your task for 25 minutes, take a five- minute break, then repeat this three more times. At the conclusion of completing four sets, you take a 15-minute break. This can work like a charm.

Another technique is to make an appointment on your calendar to devote 30 to 60 minutes to work on your task. If you really get rolling, you can extend your work period unless you have a client meeting or court appearance.

If you have been burning yourself out, stop doing so. A balanced life and focus on your personal wellness will boost your ability to focus and become diligent.

The PLF offers practice aids and publications located on its website, www.osbplf.org, under the Practice Management menu tab. On the drop-down menu, select Forms to find helpful practice aids and select Publications to look at our newsletters and publications, especially the Oregon Statutory Time Limitations Handbook.  All of these tools can help you better manage your practice, which can help you to avoid committing malpractice.