Avoiding Legal Malpractice: Identifying actions you can take to more effectively manage your risks

The PBA Professional Liability Committee is charged with conducting legal malpractice avoidance and loss-prevention programs. The Avoiding Legal Malpractice seminars are a benefit provided to all counties each year. With the Pennsylvania Bar Association Insurance Program, advised and administered by USI Affinity, you have the ability to gain valuable malpractice avoidance information, receive up to a 7.5% discount* on your malpractice insurance and earn up to 2 hours of ethics, professionalism, or substance abuse CLE credit. (*The 7.5% credit will be pro-rated based on the number of attorneys in the firm who attend the seminar. The discount does not apply to part-time policies.)

The Pennsylvania Bar Insurance Program with USI Affinity

CNA Lawyers Professional Liability Program Policy Highlights

The Importance of Assessing Legal Malpractice Coverage, CNA

Lawyers’ Toolkit 5.0: A Guide to Managing the Attorney-Client Relationship, CNA

PBA Endorsed (CNA) Claims Assistance Hotline 888.200.5212

Resources from CNA and USI Affinity to Help Law Firms with Professional Liability and Risk Management Issues

• Engagement Letters – USI Affinity – Watch this brief video to learn why engagement letters are so important and how you can receive a 50% reduction in your deductible, up to a maximum of $25,000, by using a proper engagement letter in connection with the legal services that are the subject of the claim.
• CNA Professional Counsel – Better with a Letter: Key Considerations in Engagement Letters Usage
• 2023 CNA Lawyers’ Professional Liability Risk Control Recap: Top 5 Resources
• Ten Tips to Assist in Avoiding a Malpractice Claim, CNA
• The Remote-Ready Law Firm: Managing the Long Distance Relationships from CNA
• Making Lawyer Well-Being a Priority in the Daily Practice of Law from CNA
• CNA Professional Counsel - A Bad Economy Increases Risks for Lawyers
• CNA Professional Counsel - Billing Blues: Best Business Practices for Fee Collection
• CNA Professional Counsel – Conflicts of Interest
• How Does a Practice Area Affect Risk of Claims?
• How Firm Size Affects Malpractice Claims?
• How to Determine the Best Professional Liability Insurance Coverage for Your Needs?
• Claims-Made Professional Liability Policies for the Legal Profession: What You Need to Know
• What are the Benefits of Using a Specialist Insurance Broker?

Avoiding Malpractice Articles from the Pennsylvania Bar News

Don’t forget the PBA Bar News is an excellent resource to help keep you focused and up to date on Professional Liability issues, tips and strategies. Be sure to read these articles each month. If you’ve missed seeing this important information, you can use the links below to access a few we’ve selected to highlight from 2024. All articles are available to members on the PBA website under News and Publications.

• Benefits of a Strategic Retreat: Part 1 of a two-part article about terminating representation or withdrawing your appearance. (Pennsylvania Bar News, October 7, 2024, p. 4)
• AI Revisited - How Can Lawyers Ethically Utilize Generative AI? (Pennsylvania Bar News, July 8, 2024, p. 4)
• The Solo Practitioner's Survival Kit: Part 1 and Part 2 on general advice on managing risks for solo practitioners. (Pennsylvania Bar News, January 1, 2024, p. 4, and February 5, 2024, p. 4)
• Do the Little Things, Avoid Big Problems - an article discussing small responsibilities that often go overlooked. (Pennsylvania Bar News, March 4, 2024, p. 4)
• Succession Planning Success (Pennsylvania Bar News, April 1, 2024, p. 4)
• Maintaining Confidentiality With Third-Party Vendors (Pennsylvania Bar News, May 6, 2025, p. 4)
• When Lawyers Are Too Nice - Favors in the Practice of Law. (Pennsylvania Bar News, June 10, 2024, p. 4)

PBA Ethics Opinions

• Ethical Implications Regarding the Use of Artificial Intelligence – Joint Formal Opinion 2024-200
• Addressing the storing client information on a smartphone – Formal Opinion 2022-500
• Ethical Obligations for Lawyers Using Email and Transmitting Confidential Information - Formal Opinion 2022-400
• Ethical Considerations in the Handling of Flat, Earned Upon Receipt and Non-Refundable Fees - Joint Formal Opinion 2022-300
• Use of Attorney IOLTA Accounts for Real Estate Settlement Transactions Formal Opinion 2022-200, June 22, 2022
• Attorneys Obligations to Request Counsel Fees Under Section 440 of the Workers Compensation Act, Formal Opinion 2022-100, June 8, 2022
• Ethical Obligations for Lawyers Working Remotely, PBA Committee on Legal Ethics and Professional Responsibility - Formal Opinion 2020-300, April 10, 2020
• Ethical Obligations on Maintaining a Virtual Office for the Practice of Law In Pennsylvania - Formal Opinion 2010-200
• Ethical Obligations for Attorneys using Cloud Computing/Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property - Formal Opinion 2011-200

Technology and AI

• Tips Attorneys Can Use to Protect Against a Cyber Attack and What to Do if You’re a Victim
• Cyber Risks: Liability Protections for Legal Professionals
• Let’s Talk Tech - PowerPoint slides
• Cybersecurity: 7 Steps to Protect Your Clients - “Raising the Bar”, PBI Blog
• Top 10 Risk Control Tips to Avoid Wire Fraud Scams, CNA
• Cybersecurity Insurance Tips, PBA Bar News Article by Ellen Freedman, April 21, 2025

Corporate Transparency Act

• Navigating the Corporate Transparency Act: Implications for Small and Large Law Firms
• Why You Need to Know - Now, Pennsylvania Lawyer Article, September/October 2024

Civility

• Lau v. AGH (2021 Allegheny Co.)(J. Ignelzi)
• Troiano-Tominello v. Quest (2023 Allegheny Co.)(J. Ignelzi)
• Karim v. Reedy (2016 Lacka. Co.)(J. Nealon)
• Fiduciary Trust v. Geisinger (2022 Lacka Co.)(J. Nealon)
• Hall v. Clifton Precision, 150 FRD 525 (E.D. Pa. 1993)

Disciplinary Board

• Eight Ethical Financial Mistakes Lawyers Make - an ABA article by David J. Blinsky, September 12, 2022
• I Got a Letter from the Disciplinary Board! Now What? PA Bar News article, July 11, 2022
• Anti-Harassment and Anti-Discrimination, Proposed Amendments to the Pennsylvania Rules of Professional Conduct Relating to Misconduct PA, RPC 8.4(g)
• Client Sex: Usually Unethical, Never and Good Idea, ABA Special Report, ABA/BNA Lawyers’ Manual on Professional Conduct - ISSN 0740-4050, 2-10-16

Communication with Clients

• Start the Attorney-Client Relationship Right (Engagement Agreement), Voices and Views 2015
• A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error, ABA Formal Opinion 481
• Lawyer Error - Communication with Clients - ABA Special Report (1 page), ABA/BNA Lawyers' Manual on Professional Conduct –ISSN 0740-4050, 9-21-16
• What To Tell the Client When You Seek Other Counsel Because You Suspect You May Have Committed Malpractice, PBA Bar News article by Jeffrey P. Lewis

Client Selection and Management

• Client Intake Best Practices, PBA Law Practice Management article by Ellen Freedman
• Declining and Firing Clients, PBA Law Practice Management article by Ellen Freedman
• When Less is Not More: Stumbling Into An Accidental Client, CNA

Conflicts

• Maintaining your Conflict of Interest System, PBA Law Practice Management article by Ellen Freedman

Client Files

• Client Files – Rights of Access, Possession and Copying, Along with Retention Consideration, PBA Formal Opinion 2007-100
• Creating a File Retention and Destruction Policy, CNA
• It s Not Your File Actually It Is Your Client's File -The Legal Intelligencer 092217
• Lawyers’ Duties Regarding Legal Files After a Client’s Death
• Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information, ABA Formal Opinion 473

Dabbling

If you’ve attended a PBA Avoiding Legal Malpractice program, you will recognize this telling data based on analysis of all malpractice claims:

• More than 60% of all legal malpractice claims involve an area of the law in which the attorney works less than 20% of the time.
• Attorneys who practice in a single area of law account for less than 7% of all legal malpractice claims.

(Source: 2020 American Bar Association Profile of Legal Malpractice Claims)

Dabbling in areas of the law that are different or relatively new presents a unique opportunity to expand your practice. However, it comes with an increased risk for disciplinary and legal malpractice complaints if not prepared. Read this article from CNA to learn more. “Dibble, Dabble, Double Trouble: Mitigating the Risks of Dabbling in Your Practice”

Duty to Supervise

• Ethical Consideration in the Use Nonlawyer Assistants, PBA Formal Opinion 98-75
• Law Firm Support Staff Recognizing Their Role in Avoiding Legal Malpractice Claims, CNA

Succession Planning

• Securing Tomorrow Today: A Strategic Guide to Lawyer Succession Planning, CNA
• Succession Planning Success (Pennsylvania Bar News, April 1, 2024, p. 4)
• Maintaining Confidentiality With Third-Party Vendors (Pennsylvania Bar News, May 6, 2025, p. 4)
• Plan Now: Don’t Wait for Disaster to Cause Succession Catastrophe, PA Bar News article, February 7, 2022
• Succession Planning Toolkit (please note this is a PBA member exclusive benefit. If you are not a current PBA member, please contact us to join.)
• Closing a Firm: Problems that Many Don’t Anticipate, PBA Law Practice Management
• Closing your Practice, PBA Law Practice Management article by Ellen Freedman
• Expect the Unexpected: Succession Planning for Lawyers, CNA
• Life Is Too Short, PBA Law Practice Management article by Ellen Freedman
• Musical Chairs and Retirement Policies, PBA Law Practice Management article by Ellen Freedman
• Protecting your Practice: Preparing for Disability, Death or Retirement, PBA Law Practice Management article by Ellen Freedman
• Responsible Succession Planning: Ethically Planning for Death & Disability, The Philadelphia Lawyer, Daniel J. Siegel
• Retiring from Practice: Understanding your Options, CNA
• Succession Planning – Is It Mandatory for Lawyers in Pennsylvania, PA Disciplinary Board 02-11-19
• What’s your Exit Strategy? , PBA Law Practice Management article by Ellen Freedman

Attorney Well Being

• The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, August 2017

Wills, Trusts and Estates

• Lawyer Serving as Fiduciary for an Estate or Trust, ABA Formal Opinion 02-426
• Wills, Trusts and Estates - Professional Liability Fact Sheet, CNA

PBA members who have a question related to ethics, professionalism or the business side of practicing law have access to our full-time ethics counsel and law practice management coordinator, as well as online resources.
Ethics Hotline: 800.932.0311 ext. 2214
Law Practice Management: 800.932.0311 ext. 2228

Lawyers Concerned for Lawyers
Pennsylvania’s lawyers are not immune from substance abuse, alcoholism, drug addiction, problem or compulsive gambling, depression, bipolar disorder, eating disorders, etc. Whether you are worried about your own well-being or that of a member of your family, a colleague, a judge or a law school student, LCL can help. LCL’s Confidential Helpline is answered 24 hours a day, 365 days a year. Your call is confidential. 1-888-999-1941.

To learn more about LCL services and how this information can save your life or the life of someone you know, watch this video and review the LCL brochure for an explanation of the resources and how to access the help that is available. It’s Free and Confidential.