Legal Malpractice Forum
| Publication year | 1979 |
| Pages | 1691 |
| Citation | Vol. 8 No. 9 Pg. 1691 |
1979, September, Pg. 1691. Legal Malpractice Forum
To sue or not to be sued has, for many lawyers, become an increasingly vexing problem. The Public's attitude toward lawyers continues at a base level. By the end of January 1979, the largest Colorado legal malpractice carrier had 163 legal malpractice claims outstanding and had reserved $2,046,000 associated with those claims. The trend over the last few years has been toward higher legal malpractice judgments per claim and an ever-increasing number of claims per month. Legal malpractice insurance premium charges, approximating 20 percent per annum, have paralleled a continuum of increased claims and higher verdicts.
As Chairman of the Insurance Committee of the Colorado Bar Association, I have spent considerable time and effort investigating, reviewing, and analyzing causes of legal malpractice and ways to lessen the same. In addition, I have also had the opportunity to review and analyze various legal malpractice insurance programs in the hope of bringing to Colorado a program which could offer Bar members the following: reduced premiums; risk management in the form of seminars, clinics and printed materials; peer review; rating (means used to calculate premiums) predicated, at least in part, on Colorado experience with legal malpractice; an open-record policy on behalf of the insurer; and the potentiality of dividend participation with the insurer should it be determined that premiums charged insureds exceed that which would provide an insurer a fair return. The Bar has been successful in achieving most of those goals with the legal malpractice carrier currently endorsed by the Colorado Bar Association, Northbrook Insurance Company.
As an adjunct to a Risk Management Program, developed through the Bar's endorsed carrier and discussed below, it was suggested that a legal malpractice column in The Colorado Lawyer, on a monthly basis, could provide attorneys practicing in this State an opportunity to present legal subjects of general interest to the Bar in the malpractice sphere. This introductory column discusses briefly the two major areas of malpractice, problems associated with both, and some suggestions for identifying and neutralizing the same. Further, the current legal malpractice insurance situation in Colorado is touched upon. Future editions of The Colorado Lawyer will contain articles contributed by members of the Bar describing specific circumstances likely to result in malpractice claims, preventive methods for avoiding malpractice, resolution of malpractice claims and
malpractice litigation. Contributions to this monthly column are openly solicited.
There are two major areas of legal malpractice. The first major area, and one often overlooked by the harried practitioner, is the area of administrative and clerical errors. The second area is that of substantive law.
The Florida Bar Association, in a recent survey, found that 65 percent of all legal malpractice claims of its members and seventy cents of each dollar paid on those claims was directly attributable to administrative and clerical errors. The American Trial Lawyers Association did a survey in December of 1978 and found that 76.47 percent of plaintiff personal injury legal malpractice claims were attributable to administrative and clerical errors, while 50 percent of other trial work claims were attributable to administrative and clerical errors.
One reason for the large number of malpractice claims stemming from administrative and clerical errors can be traced to the training and education that a lawyer receives in law school. The focus, if not the emphasis, in law school is to expose the law student to substantive issues of law in the various fields of law in which we all practice. The law student is exposed to elements, issues, theories and cases. What the student is not exposed to is how to run a law office from a management standpoint; how to train secretaries and paralegals about the importance of proofreading and attempting to minimize clerical and administrative errors; how to set up a central docketing system to assure that hearing dates, trial dates, discovery due dates and pleading due dates are met in a timely manner; how to find statutes of limitations and governmental notice requirements and to comply with the same; bedside manner with clients; how to handle fee disputes; how to tell a client that one has made an error and how to give a client informed consent before the client embarks upon a course of action in the business or litigation spheres. It is imperative that law schools step to the forefront of the battle against legal malpractice in the form of education to preclude or minimize the administrative and clerical errors which have become so costly to attorneys and their clients.
Other reasons for administrative and clerical errors resulting in legal malpractice claims include: no effective docket control, no effective filing system and poor client control and management. Effective management in these areas will greatly lessen the potentiality of legal malpractice claims.
The importance of a docket control system...
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