By Mark Bassingthwaighte
Everyone makes assumptions. You might be surprised, though, at how many malpractice claims result merely from a lawyer working under a false assumption.Take the attorney who allows her workload to grow beyond a reasonable level — she might not worry because she assumes that somehow she’ll find the time to get it all done. Or, she might assume a colleague will be available to pitch in, or that someone else is properly trained to assist her. The problem? What if there really isn’t enough time to get it done? What if no one else is available? What if the person asked to help out doesn’t know how to do the work correctly?
All kinds of assumptions come into play in any law practice. Here are two examples of how assumptions can cause you trouble, based on actual claims, and a few ways to address the problem.
The Problem of the Overwhelmed Staffer
Consider a high-volume real estate practice where the attorney has assigned only one staff member to title-search responsibilities, preparation of all settlement packages and other, related administrative tasks. Suppose this one staff member, who feels unable to speak up, is overwhelmed and starts to get into the weeds because of his excessive workload. It is not hard to imagine a mistake — such as listing and paying the wrong party as mortgagee — happening as a result of an attorney assuming the staff member could handle a heavy load and was properly trained when in fact, the employee really couldn’t and wasn’t.
To address this type of problem, you could try a few simple risk management tactics:
- Regularly check all settlement documents for accuracy. In fact, having all important legal documents reviewed by a second set of eyes is always a good idea, regardless of practice area.
- Start monitoring the reasonableness of every employee’s workload. Conduct periodic reviews of work in progress to stay abreast of how staff are doing day to day, because some people are unable to say, “Stop, this is enough!”
- Review all open files from time to time. As with document review, getting periodic status updates on all active files is a great risk management tool for any practice.
One caution: Understand that the intent is that you approach the problem by looking for ways to maintain quality work product. The process should never be used as an excuse to start micromanaging staff.
The Problem of Inherited Files
While a number of firms fail to see the value of instituting a formal file review process for all lawyers, there are specific times when it should be given serious consideration. For example, let’s say Attorney Smith is retiring from the practice of law to embark on a new path. In many situations, his files will be transferred to other firm attorneys or files may end up going elsewhere.
Say that Attorney Wilson takes over Smith’s files. As files are transferred, Wilson’s workload jumps substantially — literally overnight. Wilson assumes that all of Smith’s prior work was accurate and correct. She also assumes that she will be liable only for the work she does on these files, but not for anything that Smith might have done prior to her involvement. Truth be told, both assumptions are problematic.
- What if Smith’s decision to leave the practice was due to his being burned out and certain matters were actually neglected?
- What if in the final year or so leading up to his retirement Smith’s mental acuity started to deteriorate and mistakes were made?
When Wilson accepted responsibility for Smith’s files, she also accepted accountability.
From a liability perspective, accountability for past work done by Smith may not be immediate, but it will come. These clients will expect to be told of any prior problems in their files. As they see it, Wilson’s acceptance of responsibility for their files brought with it a responsibility to review those files. She really should have conducted a thorough file review of all incoming files from Smith, even recently closed files. I can assure you that malpractice carriers have paid losses for this very mistake.
Life Isn’t Always Neat and Tidy
These two examples demonstrate the kinds of consequences that can arise when you work under false assumptions. As any practice becomes busy, the temptation to assume all is well can be strong indeed. The new associate is settling in just fine. The network will never go down. Everyone is using the new case management system. There isn’t a problem — as long as all the assumptions that are in play turn out to be correct.
But again, what if the new associate is struggling? What if a truck hits a pole and knocks out power so your network isn’t available for a last-minute filing? What if a few folks are using the new case management system incorrectly due to poor training? Life isn’t always neat and tidy. Some assumptions will turn out to be incorrect. It’s important to keep this in mind and periodically ask if any assumptions are in play. If so, then the next step is to figure out what to do about them. Leave them alone and those false assumptions will bite at some point.
As I see it, it’s just a matter of time.
Mark Bassingthwaighte is Risk Manager for ALPS Property & Casualty Insurance Company (@ALPS411), a leading provider of Lawyers’ Professional Liability Insurance. In his tenure with the company, he has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the U.S., and written extensively on risk management and technology. Mark received his J.D. from Drake University Law School and can be contacted at email@example.com.
Previously posted on Attorney at Work.