Note: This article is an update of one originally published April 7, 2021.
Every law firm is unique. Different clients. Different case matters. Different details. Even so, big-picture patterns often emerge in the data. While all firms face some risk of a malpractice claim, some practice areas carry more risk than others.
Knowing such risks can lead to better understanding and risk management. Here’s what to know about one study that ranks the top 10 legal malpractice claims.
Takeaways Gleaned from the ABA’s Data
Every four years, the American Bar Association’s Standing Committee on Lawyers’ Professional Liability surveys U.S. professional liability carriers and publishes its Profile of Legal Malpractice Claims, one of the profession’s most comprehensive reviews of malpractice trends. The report assesses legal malpractice claims data in terms of:
- Area of law factors
- Activities giving rise to a claim
- Size of firm factors
- Expense and indemnity data
The latest edition covers claims reported from 2020 to 2024.
Top 10 Practice Areas for Legal Malpractice Claims
According to the ABA’s most recent study, the practice areas generating the highest frequency of malpractice claims were:
- Estate, Trust and Probate
- Real Estate
- Personal Injury Plaintiff
- Family Law
- Collection and Bankruptcy
- Business Transaction/Commercial Law
- Patent, Trademark and Copyright
- Corporate/Business Organization
- Labor Law
- Criminal Law
New and Ongoing Areas of Elevated Risk
The new list is largely consistent with previous results. However, the new study shows risk is increasing in some areas.
Estate Planning
One of the most significant developments in the latest study is the rise of Estate, Trust and Probate matter claims from fourth place in the last survey to the top position in this one. An aging population of clients involved in generational wealth transfers and other factors were thought to be contributing to the heightened malpractice exposure, as lawyers handle increasingly complex planning, administration and fiduciary matters.
Intellectual Property and Labor Law
Claims for Patent, Trademark and Copyright and Labor Law also both increased, compared to the previous reporting period. The data highlights the risk lawyers in these areas of practice can face from common activities such as calendaring, documentation, client communication and conflict management.
3 Other Risk Factors for Claims
The type of law you practice isn’t the only risk factor for a malpractice claim. The study reveals that other factors also may increase your risk for a claim.
1. Firm Size Still Matters
Smaller firms continue to face the greatest claim exposure, though other trends are also emerging. Firms with five or fewer attorneys generated the majority of claims, with solo practitioners particularly at risk. This was the case in the previous survey data, as well. However, the report also noted a jump in claims for firms with more than 500 lawyers. This cohort’s share in claims nearly tripled since 2019, from 4.62 percent of claims to 11.1 percent.
2. Common Activities Can Lead to a Claim
The ABA study found that the same 5 core professional legal activities continue to generate the most malpractice allegations:
- Preparing, filing and transmitting documents
- Commencement actions or proceedings
- Providing legal advice
- Pre-trial and pre-hearing activities
- Settlement and negotiation work
It’s notable that these same common activities have turned up in previous survey data going all the way back to 2003.
3. Errors a Leading Claim Cause
Legal errors remain a significant source of claims in the survey data. Key examples that showed up again and again include failure to know or properly apply the law and inadequate discovery or investigation. However, missed deadlines, drafting errors, conflicts of interest and administrative mistakes remain common causes of claims, suggesting that a firm’s malpractice woes can often be driven less by complex legal theory than by normal, everyday failures in execution.
Challenges of Facing a Claim
The initiation of a malpractice action can lead to many outcomes, not all of them costly. About 82 percent of claims in the study did not lead to a judgement or settlement against the insured lawyer, meaning about one in five did lead to an insurance payout of some sort.
Yet on the other hand, all malpractice claims carry the risk of a damaged reputation, high stress, lost sleep and unplanned-for legal costs to hire experts to defend yourself. Insurance protection is one way to help level the legal playing field and manage the potential cost of a claim.
Attorneys at smaller firms, in popular areas of practice, carrying out everyday activities and subject to the same, normal human error as the rest of us, are at the highest risk according to this ABA data. Yet those same factors can make getting the coverage you need difficult.
Protection from Legal Malpractice Claims
At Lockton Affinity Lawyer, we don’t shy away from a challenge. Our insurance program was created specifically to address the unique needs of law firms like yours and find a custom-fit, one-stop-shop solution for every client. In particular, we have many competitive products available tailored just to suit solo practitioners and firms with five attorneys or fewer — those lawyers which the ABA has identified are most at risk of a malpractice claim.
Discover options that are ready to serve your firm today. Learn more about Lockton Affinity Lawyer, request a quick price indication or call us at (844) 398-0465 to get started.
