Ten Tips for New Lawyers
Will Graebe, Claims Counsel & Relationship Manager
Lawyers Mutual Liability Insurance Company of NC
Whether you are new to the practice of law or a seasoned practitioner, these tips will aid you in managing your day-to-day practice, managing relationships with clients, colleagues, family, and yourself. Here we highlight key tips from Will from the excellent paper he provided for a recent webinar. Download the complete paper here.
Ten Tips for New Lawyers from Day One
1. Documenting Your Relationship with Clients and Prospective Clients Documenting your relationship with a client is one of the most effective ways to avoid malpractice claims and ethics complaints. A good engagement letter can be the difference between a long, drawn-out legal malpractice case versus a simple one-page denial letter. When an arrangement or relationship between the lawyer and client is not reduced to writing, the lawyer and client may have very different recollections or understandings of what the lawyer was hired to do.
2. Avoid Red Flag Clients Another important risk management tool you have at your disposal is client selection. Good client selection will lead to interesting work, job satisfaction and revenue for your firm. Bad client selection can lead to malpractice claims, ethics complaints and billing nightmares. Red flag clients are far more likely to make claims and file grievances against their lawyers.
3. Dockets, Deadlines and Procrastination The most frequent cause of legal malpractice claims is missed deadlines. These claims can arise from missed statutes of limitation, late tax filings, missed regulatory deadlines, late responses to discovery requests, or any other missed deadline that is either fatal to a client’s claim or causes some damage to the client. The reasons why lawyers miss deadlines are varied. Sometimes, the lawyer just doesn’t know the statute of limitations for the claim. This often happens where a lawyer attempts to handle an out-of-state matter and doesn’t realize the other state has a different statute of limitations than North Carolina for a particular matter. Other times, the lawyer fails to calendar the deadline or enters the wrong date. Most of these claims can be avoided with a good docket control and calendaring system.
4. Own Your Mistakes But Don’t Fall on Your Sword If you practice law long enough, you are bound to make a mistake while representing a client. Some mistakes are harmless and immaterial. Other mistakes may be fatal to your client’s case. In between those two extremes are mistakes that cause your client to suffer some negative consequences or create the possibility of negative consequences in the future. What is required of you when you make a mistake depends on the nature and severity of the error. Failure to make appropriate and timely disclosure of errors can result in adverse disciplinary, malpractice and coverage consequences.
5. Take Care of Yourself As lawyers, we don’t like to talk about our problems. We like to talk about other people’s problems. We’re really good at the latter and really bad at the former. We want people to think that we have it all together, that we don’t have any problems. If we are struggling with something emotionally or mentally, we certainly don’t need help from anyone else. What would people think? Would my adversaries think I’m weak and take advantage of that weakness? Would my clients lose confidence in my ability to handle their matter? This mentality, combined with the daily stress and pressure of practicing law, has resulted in high levels of anxiety, depression and alcohol abuse in our profession.
Well-being and happiness are not prizes at the end of a road. They are not something that we strive for and get and then sit back and enjoy. Well-being is a journey—a lifestyle. It’s about designing a life that creates opportunities for joy and purpose and meaning. It’s about creating a state of mind that, when bad things happen, we can be present with that experience and then move forward. Mental health is much like physical health. To have either, we must be active participants. Sure, there is a genetic component to both physical and mental health. But neuroscience has shown us that we can rewire our brains for improved well-being. We have a choice. We can structure our lives to include some of the practices discussed above or we can let our genetics and circumstances limit what is possible.
6. Communications and Client Relationships What do you think is the number one complaint clients have about their lawyers? It is not lack of knowledge or competence. It is not even dissatisfaction with the outcome of a matter or the cost to the client. A BTI Consulting Group Survey indicates that failure to keep a client adequately informed is far and above the number one complaint clients have.
Poor communication not only results in loss of business, but also increases the likelihood of malpractice claims, ethics complaints and poor reviews. Clients who feel seen and heard by their lawyers are far less likely to make such complaints.
7. Don’t Dabble Rule 1.1 of the Rules of Professional Conduct prohibits a lawyer from handling “a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter.” Handling matters for which you are not competent is known as dabbling, and it is one of the leading causes of malpractice claims.
For new lawyers most new matters will involve some level of dabbling. Law school training may be sufficient for certain matters but does not provide the practical experience for handling many practice areas. That can only come from experience. If you’re in a law firm with other attorneys, you can rely on the experience of more experienced attorneys in the firm to mentor you through a case or matter. If you’re solo, you must find another solution. Here are a few suggestions for new lawyers:
1. Associating Counsel
2. Educate Yourself
3. Use the Resources of Your Bar Association or Specific Practice Area Associations
4. Get Involved in a Mentoring Program
5. Call on Lawyers Mutual Claims Attorneys
8. Watch for and Avoid Conflicts of Interest Conflicts of interest account for many legal malpractice claims and ethics complaints. Sometimes, conflicts are obvious. Other times, a conflict can be subtle or might only become evident well into a representation. Every firm, regardless of size, should have conflict of interest policies and procedures in place to identify conflicts of interest before accepting representation. However, even with a conflict checking system in place, lawyers must still exercise good judgment in assessing conflicts and potential conflicts. Additionally, it is essential to understand the conflicts rules under Rules 1.7, 1.8 and 1.9 of the Rules of Professional Conduct.
9. Take Time to Investigate and Develop Facts As law students, we spend three years learning about the law. We learn how to research cases, statutes and regulations and apply what we find to a given set of facts. However, we are taught very little about how to investigate the facts of a case. A frequent mistake made by new lawyers is failing to fully investigate, collect and develop the facts of a new matter or case. This is true in both litigation and transactional matters. Developing and investigating facts can be tedious and sometimes unpleasant. You may have to speak with parties or witnesses who really don’t want to talk to you. Or you might have a client who needs some prodding to give you all the facts. You must be persistent. Cases are often won or lost on a particular fact that would not have been discovered but for the lawyer’s persistence in digging for and collecting the facts. It can also mean the difference between filing a case within the statute of limitations or missing the statute.
10. Focus Less on Outcomes and More on the Journey Hopefully, you will have a long and fruitful career in the law. You will have good days and bad days. You will win some cases and lose some cases. You will have happy clients and disgruntled clients. Even the best lawyers lose sometimes and have unhappy clients during their career. Does that mean that they have failed? If you measure success by winning and pleasing others, then, yes, they have failed. Living life by this measure will create a life full of anxiety and disappointment. If your happiness and satisfaction are dependent on outcomes being what you need them to be, you will frequently come up short. Plus, sometimes what we see as bad ends up turning out to be good.
But what if you measured success by something other than outcomes? What if you measured success by the actions that you took along the way? You will soon learn that, no matter what you do, you can lose a case or disappoint a client. The only thing that you have any real control over is your own actions. Have you zealously represented your client’s interests to the best of your ability? Have you acted ethically? If so, you can be pleased with whatever the outcome is. Practicing law is no different than anything else in life. We have far less control over results than we think we do. So, let go of the need for control and outcomes. Work hard and enjoy the satisfaction of knowing that you did your best. And if there are times when you don’t give it your best, give yourself some grace. Nobody is perfect, even though our clients sometimes think we should be.
Download complete paper.