The number of legal malpractice claims targeting family law practitioners is on the rise. The highly emotional and stressful nature of family matters means clients are more likely to pursue a claim over a real or perceived legal error. Recognizing the potential pitfalls can help lawyers and law firms minimize the risk of incurring a family law malpractice claim. Along with professionalism and a strong advocacy for clients, these family law risk management tips can help you protect yourself and your practice.
Top Family Law Legal Claim Risks
While a family law attorney may be sued in any aspect of practice, claims are more common in certain areas. Trends in the claims reported by family law attorneys indicate three areas where extra caution is needed:
- Prenuptial agreements (prenups): Regarding advice on full disclosure of assets, adequate legal representation, stated intent documentation and state law criteria.
- Divorce settlements: Regarding inadequacy of asset value investigation, failure to discover hidden assets, proper file documentation and court intervention where appropriate.
- Qualified Domestic Relations Orders (QDRO) preparation: Regarding inclusion of all necessary language, compliance with state law of the relevant company, stipulation of who will prepare and process the QDRO, provision for pre-retirement survivor benefits, addressing of any current or future 401(k) loans and documentation concerning expert consultation as needed.
Family Law Risk Management Tips
A distraught former or current client may attempt to pursue a claim even when you or your firm has made no error. However, certain steps can reduce the likelihood that a client will pursue a claim and aid you in refuting a claim if one is made. Consider the following family law risk management tips:
Manage Client Expectations
- Manage client expectations right from your initial meeting
- Determine the client’s goal and discuss whether it is realistic
- Be frank about potential outcomes, resolution times and cost projections
- Discuss the client’s responsibilities in terms of providing information and paying bills
- Explain your responsibilities in the course of representation in terms of advocacy and communication
Utilize Client Letters
- Initiate every representation with a client engagement letter
- Use client letters to document who is and is not the client and the scope of services
- Take the opportunity of an engagement letter to spell out billing rates and procedures
- Utilize closing letters at the end of every representation
- Stipulate the end of services, any outstanding balance and any tasks clients should complete
- Invite clients to give feedback, it’s helpful professionally and as documentation
Ensure Ongoing Communication
- Keep your clients informed, especially when it comes to stressful family law matters
- Advise clients of all case developments as soon as possible
- Respond to a client’s questions and inquiries in a timely manner
- Copy clients on all correspondence and give them copies of pleadings
- Keep documentation of these communications to refute any claims a client did not know what was going on with a case
Keep Proper File Documentation
- Understand the importance of proper file documentation
- Confirm all agreed courses of action and client responsibilities in letter or email format
- Affirm in a letter or email to the client any rejected plans and potential consequences
- Consider using detailed billing statements to reflect discussions with the client
- Realize these documentations can make all the difference defending against a “he said / she said” claim
Know the Applicable Law
- Make sure you do not become a statistic in the handful of yearly claims involving ignorance of applicable law
- Take advantage of CLE offerings in your jurisdiction to make sure you are up to date on the latest developments
- Consider consulting an expert or referring a client to a different attorney for issues outside your expertise
- Be equipped to provide proper representation and don’t dabble when it comes to the complex area of family law
Always Maintain Professionalism
- Remember to maintain your composure, even if situations become highly charged
- Take care that your professional conduct is not perceived as vindictive or obstructive by opposing counsel
- Rise above any harassment or personal attacks made by opposing attorneys or their clients
- Stay focused on the desired result of the case and always keep the rules of ethics in mind
Like all clients, family law clients deserve a strong legal representation from lawyers and law firms willing to ensure the proper standard of care and a duty to the client’s interests. However, attorneys must also recognize and manage the risks that come with representing clients in this area of practice. Inform yourself of the most common malpractice claim risks and take the appropriate steps to reduce or eliminate your risk for a family law malpractice claim.
Copyright Swiss Re Corporate Solutions 2020. This article is intended to be used for general informational purposes only and is not to be relied upon or used for any particular purpose. Swiss Re shall not be held responsible in any way for, and specifically disclaims any liability arising out of or in any way connected to, reliance on or use of any of the information contained or referenced in this article. The information contained or referenced in this article is not intended to constitute and should not be considered legal, accounting or professional advice, nor shall it serve as a substitute for the recipient obtaining such advice.