It is Easy for Family Law Attorneys Not to Get Sued

By Joel Selik.

Being an attorney is undeniably challenging—this truth is nowhere clearer than in family law. Family law attorneys face, for example, complex financial analysis, changing laws, and intense human emotions. On top of these complexities, they must manage a law practice while striving to maintain a life outside of the courtroom and office. This burden can lead to malpractice.

Nevertheless, steps can be followed to significantly lower the risk of being sued.

Family Law Attorneys Do Get Sued.
In some studies family law attorneys rank as the second most common area of law for malpractice lawsuits.

Communication.
“What we have here is, failure to communicate.” —Strother Martin to Paul Newman in Cool Hand Luke. It is the most common cause of both State Bar complaints and malpractice claims.

Communication is key to good client relationships. Good client relationships are key to not being sued. In general, clients who like their attorneys, feel heard by their attorneys, and hear from their attorneys do not get sued. When a client feels ignored by the attorney and something goes wrong in the case, that client is more likely to consult with legal malpractice attorneys. While the failure to communicate might not be the main area of malpractice,[1] it can prompt a client to consult with malpractice attorneys.

Our modern world makes communication exceptionally easy. Make a practice of e-mailing all, or most, documents, such as pleadings, reports, letters and e-mails, to your clients. It’s fast, easy, and, when made a routine part of your process, will not be overlooked.

There are many times in cases where it appears to the client there is nothing going on. Even if that is the situation, communicate with the client about what is going on in the background, or what is going to happen next. Calendar a reminder to e-mail the client regularly, e.g., every three weeks.

Documentation.
At every step of the case your advice should either be in writing or confirmed in writing. All offers, rejections, advice (in particular rejected advice) and other client decisions should be confirmed in writing.

A Systems Approach.
When things that should get done do not get done, attorneys get sued. Common areas of legal malpractice for family law attorneys are:

1. Not obtaining discovery from the opposing party (and not filing motions to compel),
2. Not obtaining third party discovery such as subpoenas on financial institutions, bookkeepers/accountants, and other sources.
3. Not being prepared for hearings and trial.

A systems approach can prevent these problems. For each main type of case, the lawyer should have a systems approach to managing the case. This system should be in writing. A checklist with dates and triggers works well. While the author is not a family law lawyer, a checklist might have, for example, a list of major topics, such as termination of the marriage, temporary support, permanent support, child custody and the like. Under each of these topics can be a list of everything that can be done in such cases. The items are then calendared. The list is kept in front of the case file or in the case’s main directory. Not every case will need every action item, but having the list will allow the attorney to consider each issue.[2]

A part of calendaring should be the time necessary to prepare for trial and hearings. A shocking number of complaints against family law attorneys involve the attorney not being prepared, or not knowing the facts, witnesses and/or issues.

Hire Experts.
In many cases, experts will be needed; for example, accountants/economists, and business and real estate appraisers. If such experts are clearly needed, hire the experts right away. If it is not certain if they will be needed, calendar a date when to reconsider using the experts.

Use of Associates.
If you use associates or other attorneys to work on important motions, hearings or trials, advise the client and confirm this in writing.

Confidentiality & Conflicts.
Other common issues are attorneys sending opposing parties’ confidential information and not properly screening for conflicts.

Billing.
Nothing leads a client faster to a legal malpractice attorney’s door than getting a huge or unexpected bill. Bill every month. This gives the client an idea of what is going on, and their financial responsibility. Even if someone else is paying the bill, make sure the client receives a monthly statement.

Relationship with Opposing Counsel.
Many potential legal malpractice clients believe—unjustly—that their attorneys are in collusion with the opposing attorney. Hopefully you, a quality family law practitioner, take civility to heart and treat opposing counsel and opposing parties with respect. You may even be friendly with opposing counsel as you have had other cases with that attorney. Or that may just be your way. Excellent. But explain this to your client so they are not surprised or think you do not “have their back.” Again, communication is key.

Explain to the new client that part of being an attorney is being a counselor-of-law, and that part of your job is to counsel them, not just be their advocate. Explain that even if you may tell them that something is not possible, or that you might not win on a particular point, it does not mean you do not support them.

Don’t Dump Clients.
If the attorney-client relationship must end, for whatever reason, do whatever you can to assist the client in understanding and easing the transition to a new attorney. Never drop a client while there are immediate issues that may be addressed before a new attorney may step in. And do not drop a client just before trial.

But it Happens.
Lawsuits can happen. They can happen even if all the steps are followed. Sometimes lawsuits are filed without merit. And attorneys are human. We all make mistakes. Just as when we are driving, mistakes can happen. The attorney, like the automobile driver, must compensate the person harmed.

While we cannot lawfully drive a car without insurance, we can practice law without insurance.[3] Don’t. Protect yourself with insurance. This also protects your clients—if an attorney’s negligence causes harm, the client should be protected.

When you get “the letter.”  The first step, if you get a letter from an attorney indicating you may be sued for malpractice, is not to panic. Many attorneys feel personally attacked, embarrassed or guilty when they are accused of malpractice. Panic and worry do not help. It is part of the business of the practice of law.

When you get the letter, a good practice is to respond to the letter acknowledging receipt. As in representing clients, as is true in most aspects of life, communication is important.

The next step may be to hire your own attorney aside from the attorney hired by the insurance company. This attorney can oversee the insurance attorney and allow a communication avenue directly between you and the former client. And, of course, notify your insurance company.

Again, do not fret or obsess about the case; this is why you have insurance.

 

CONCLUSION
 

It is “tongue in cheek” to say that it is easy for family law attorneys not to get sued. Being a family law attorney is hard— family law lawyers face unique challenges, in particular when it is the most stressful experience of the clients’ lives.

Following the steps above, in particular good client communication and using a systems approach will help avoid legal malpractice cases.

Joel G. Selik is a Certified Specialist in Legal Malpractice. He practices in Nevada & California in Legal Malpractice and Judgment Collection. He is a member of the State Bar of Nevada Standing Committee on Ethics and Professional Responsibility (SCEPR), is the Ethics Column Editor for Trial Bar News, and acts as a fee dispute mediator and arbitrator. Selik can be reached at Joel@SelikLaw.com.