Bill McCaffery is a legal malpractice defense

attorney at L’Abbate, Balkan, Colavita & Contini, L.L.P. in New

York. When he’s not in court defending lawyers, he can be

found in Disney World being run ragged by his wife and eight

year old daughter.

By: Bill McCaffery

Questions to Ask Before Accepting A New Case

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No attorney can be fully insulated from a legal malpractice claim or grievance, but there are certain precautions that can be taken to minimize exposure to

such claims. One important risk management tool is the strict screening of all cases before they are accepted into the practice. Rejecting cases with certain “red flags” can go a long way in preventing otherwise avoidable malpractice claims and grievances. Here are eight important questions to ask before accepting any new case.

1. Is the case too big?Lawyers are often eager to accept big cases because such cases can result in significant legal fees. However, a case that is too big for an attorney’s practice can often lead to problems. A large case can divert resources (time, staffing, etc.) from other cases in order to handle the demands of the large case. This diversion of resources to the large case often comes at the expense of the other cases in the office and results in the neglect of the other cases. Such neglect can cause problems with the other cases, resulting in malpractice claims.

2. Is the case too small?Attorneys often take small cases with the hope that by handling the small case, the client may return with a bigger case or refer other clients. However, it is often the smallest cases that result in the biggest problems. A small case is likely to generate only a small fee and it is human nature to give greater attention to those matters that are going to provide the greatest reward. As a result, it is often these smaller cases that are neglected and consequently result in a malpractice claim. While a case may be small, an attorney owes the same duty to the client with a small case that she does to the client with a more profitable case.

3. Do you have the necessary experience?Attorneys generally concentrate their practices in particular areas of the law. Since they regularly handle matters in their areas of practice, they are proficient in such matters and less likely to have a malpractice claim arise in an area of the law in which they regularly practice. However, attorneys sometimes take cases outside their areas of regular practice and it is the dabbling in these less familiar areas of the law that can result in malpractice claims. According to the 2015 Profile of Legal Malpractice Claims by the American Bar Association Standing Committee on Lawyers Professional Liability, 15.38% of all legal malpractice claims arise from an attorney’s failure to know or properly apply the law.

4. Do you have time to properly investigate?Potential clients can consult an attorney at a time when a deadline is imminent (i.e., statute of limitations, contractual date, time to respond, etc.). In an effort to assist the time-strapped potential client, attorneys may hastily accept the retention. However, when a deadline is looming, an attorney may not have sufficient time to properly investigate the matter and determine a proper course of action before the deadline is reached. In the case of personal injury matters, for example, a late retention on the eve of a statute of limitations deadline can result in improper parties being sued or all necessary parties not being sued. If the client cannot make a full recovery on his claim because the attorney failed to name the proper parties, a legal malpractice claim will inevitably result.

5. Are you familiar with the venue?In matters such as litigation, it is important that the attorney is familiar with the venue of the potential case. Errors are often made because the attorney does not regularly practice in a certain venue. For example, while an attorney may be admitted to federal court, she may primarily practice in state court or while an attorney may be admitted to practice law in more than one state, she may primarily practice in only one state. Laws, rules, and procedures vary widely between venues and unfamiliarity with a venue can be an invitation to error.

6. What are the client’s expectations?A client with unrealistic expectations will be difficult to satisfy. For example, in the context of a personal injury action, if a potential client believes that his case is worth $1,000,000, but the case is worth significantly less than that amount, it is imperative that the client be educated by the attorney about the actual value of the case. A client who is not educated in this

way or who refuses to accept the attorney’s advice in this regard will never be satisfied. If the attorney achieves a spectacular result, but that result does not meet the client’s expectations, the client will inevitably be dissatisfied and dissatisfied clients result in legal malpractice claims and grievances.

7. What are the client’s motivations?It is important to understand a potential client’s motivations at the outset of a potential representation. Our legal system generally only permits a monetary recovery. Accordingly, a client motivated by anger or revenge or even an altruistic motivation such as justice, will never be satisfied because the results they seek are unobtainable.

8. Can the client afford you?Disputes over legal fees are a common cause of legal malpractice claims. A fee claim brought by an attorney against a client will almost certainly result in a legal malpractice counterclaim against the attorney. Accordingly, attorneys should approach with caution any potential client who expresses concerns with the legal fees quoted at the outset of the representation. A client who has issues and concerns over costs at the outset of a matter will inevitably have objections to the legal fees throughout the course of the matter, which leads to conflict between the attorney and client and resulting claims.

Lawyers cannot prevent every possible claim, but by asking questions like these before accepting a new case, lawyers can identify cases that are likely to lead to problems and keeping these problem cases out of a practice can be almost as valuable to the practice as the cases that are accepted into the practice.

Eight Questions to Ask, continued from previous page