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.)
PBA Endorsed (CNA) Claims Assistance Hotline 888.200.5212
The Pennsylvania Bar Insurance Program with USI Affinity
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 Lawyers Professional Liability Program Policy Highlights
Lawyers’ Toolkit 5.0: A Guide to Managing the Attorney-Client Relationship, CNA
Resources from CNA and USI Affinity to Help Law Firms with Professional Liability and Risk Management Issues
PBA Ethics Opinions
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
Supporting Materials for this year’s program
Let’s Talk Tech - PowerPoint slides
Cybersecurity: 7 Steps to Protect Your Clients - “Raising the Bar”, PBI Blog
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 Intake Best Practices, PBA Law Practice Management article by Ellen Freedman
Client Sex: Usually Unethical, Never and Good Idea, ABA Special Report, ABA/BNA Lawyers’ Manual on Professional Conduct - ISSN 0740-4050, 2-10-16
Declining and Firing Clients, PBA Law Practice Management article by Ellen Freedman
Fee Division with Client’s Prior Counsel, ABA Formal Opinion 487
The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, August 2017
Ten Tips to Assist in Avoiding a Malpractice Claim, CNA
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
Communication with Clients
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
Conflict
Maintaining your Conflict of Interest System, PBA Law Practice Management article by Ellen Freedman
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
Engagement Agreement
Better with a Letter: Why Attorneys Should Use Engagement Letters, CNA
Lawyers Toolkit 5.0: A Guide to Managing the Attorney-Client Relationship, CNA
Start the Attorney-Client Relationship Right (Engagement Agreement), Voices and Views 2015
Succession Planning
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
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.