Conflict Check Systems and Maintaining Conflict Database
THREE-(3)-YEAR LIMITATIONS PERIOD FOR LEGAL MALPRACTICE CLAIMS NOT ABSOLUTE SHIELD FOR PRACTITIONERS SEEKING TO RECOVER LEGAL FEES*

THE IMPORTANCE OF ATTORNEY BEDSIDE MANNER

Shutterstock_285087869To a busy practicing attorney, the importance of appropriate bedside manner can easily be overlooked. However, the practitioner must always be mindful that each client has a real world problem that needs solving. The client is looking to his or her attorney for representation in connection with a legal issue, but at times, the client is also looking for a sympathetic ear. It is critical for the practitioner to listen to the client’s concerns, remain available to the client throughout the representation and keep the client involved in all phases of the client’s matter. Above all, the practitioner should treat each client as the practitioner’s most important client. Appropriate bedside manner will lead to happier clients, potential new referrals and also serves to minimize the risk of malpractice claims.[1]

Several factors assist the practitioner in refining his or her bedside manner. The importance of listening cannot be overstated. When meeting with a client for the first time, the busy practitioner must be willing to provide the client with sufficient time to tell his or her story. In an effort to streamline the meeting, the practitioner may attempt to rush the client to “cut to the chase” and steer the client towards providing only the relevant information. This may leave the client feeling frustrated that the attorney is either unable or unwilling to spend the time necessary to understand the client’s problem. It may also serve to undermine the client’s confidence in the attorney’s ability properly represent the client’s interests.[2]

The background of the legal issue is important to the client, and it should therefore be important to the practitioner to listen and fully understand the client’s position. This may also help to understand whether there may be any alternative means available to resolve the client’s matter. Attorneys are often tasked with counselling clients on areas that extend beyond the law. Occasionally, a client simply needs to “vent.” The practitioner should be prepared to provide a caring and sympathetic ear, which should aid in building the relationship between the practitioner and client and ultimately boost the client’s confidence in the attorney’s ability.  

The practitioner must explain what the client should expect going forward. For example, if the client retains the practitioner for representation in connection with injuries sustained in a motor vehicle accident, the practitioner should explain the discovery process. The practitioner should explain that the client will receive authorizations that must be executed and returned expeditiously. The client must be prepared to attend a deposition. The client should also be advised that he or she may have to attend an independent medical examination. The practitioner should use best efforts to avoid surprises and ensure that the client understands what is to come.[3]

The client should be kept involved in the process and should receive periodic updates regarding the status of the client’s matter. A client should never have to guess or be kept in the dark regarding the status of his or her matter. The client should know what the practitioner is doing and why. The client should be provided with motions and/or other correspondence and have the opportunity to offer suggestions. When sending correspondence to the court or to an adversary, the client should be copied. In this way, the client feels involved and is reminded that the practitioner is working hard towards resolving the client’s matter.

The client must be timely advised of all important developments that take place. The practitioner must take the time to explain how each development impacts the client’s matter. For example, if an adversary files a summary judgment motion that may dispose of some or all of the client’s claims, the client must be timely advised. The practitioner must provide the client with a full and frank analysis of the potential outcome(s). Keeping the client involved is a useful risk management tip, as a well-informed client may be less likely to later assert a claim if there is a bad result, especially if the client was fully advised that the bad result was a possibility. Bad news should be delivered with compassion to the extent possible. The practitioner should also consider whether certain news requires a personal phone call or whether a written communication is appropriate. It is fair to say that a phone call is a much more appropriate way to deliver bad news.

 The practitioner must spend appropriate time preparing the client for such things as depositions or other important meetings. For example, the practitioner should ensure that the client is adequately prepared for his or her deposition. The practitioner should spend time with the client preparing for the types of questions that will be asked, and why those questions will be asked. A well prepared client will make a much better presentation and be a much better witness. During the course of the deposition, the practitioner should remain focused on the questions being asked and prepared to make timely objections. All too often an attorney defending a deposition is busy looking at his or her cell phone. Such lack of attention can leave a client frustrated and with a feeling that the attorney is not fully invested in the outcome of the client’s matter.         

The practitioner must be responsive to the client’s questions. One of the biggest complaints clients have about their attorneys is that they are not responsive. If a client calls or emails with questions about his or her matter, a good rule of thumb is to acknowledge the inquiry within twenty-four (24) hours – if not sooner. Often, it may not be possible to provide a detailed response to the client right away; however, the practitioner (or someone on the practitioner’s behalf) must acknowledge the inquiry and advise the client that his or her question will be answered as quickly as possible.  

Good bedside manner means that the practitioner understands that representing a client is more than simply advocating the law. The practitioner must take steps to ensure the client is heard, feels part of the process and is made to understand the intricacies of the legal system in a manner which is understandable to the client. A good bedside manner will likely keep clients happy, and a happy client is likely to refer friends and relatives in need of legal advice.

 For more information on Professional Liability Insurance, contact USI Affinity today.  1.855.USI.0100

[1] See http://files.lawyersmutualnc.com/manuscripts/that-oh-no-moment/that-oh-no-moment-2011.pdf, noting that good attorney-client relations may help prevent malpractice claims, as a client satisfied that an attorney has used his or her best efforts may be less likely to commence a malpractice claim.

See also http://www.injurylawsourcepa.com/2010/06/pittsburgh-medical-malpractice-lawsuit.html, which addresses the correlation between a doctor’s poor bedside manner and medical malpractice claims.

[2] See http://blogs.findlaw.com/strategist/2012/10/attorney-malpractice-claims-what-most-gets-lawyers-sued.html, noting that by exercising good bedside manner, attorneys may be able to significantly reduce the chances of a legal malpractice claim.

[3] See https://www.law360.com/articles/825263/5-tips-to-avoid-employment-malpractice-suits, noting that informed clients that feel they are part of the legal process may be less likely to commence a malpractice action.

 

* This article was prepared by Andrew R. Jones, Esq. and Bain R. Loucks, Esq. of the New York City-based law firm of Furman Kornfeld & Brennan LLP.  Andrew and Bain work as part of a team of 15 lawyers devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters.  For more information about the above topic or the authors, please visit: www.fkblaw.com.

We trust that the above article was useful and thought provoking; however, please note that it is intended a general guide only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters. 

For more information on LPL coverage generally and how conflict checking and client selection can affect the exposure of your firm to malpractice claims, contact USI Affinity today.

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