Oregon State Bar Bulletin — FEBRUARY/MARCH 2004

Managing Your Practice
Developing good client relations and preventing malpractice claims
By Carol Wilson

Failure to know or ascertain deadlines, failure to calendar, failure to file – these failures create malpractice claims that could be prevented. Poor systems, or good systems not followed, cause many of the malpractice claims seen by the Professional Liability Fund. Setting up — and following — docket and tickler systems that will prompt the lawyer and protect the client from missed deadlines is one solution. Developing good client relations is another. The use of checklists will ensure that all the necessary steps needing to be performed in a matter are taken.

Docket Systems
A good docket system should include every item that you need to respond to, even if it is not a crucial deadline date. Examples of fatal deadline dates include missing the statute of limitations or failing to timely file a notice of appeal. Although missing other deadline dates may not bar your client’s claim, it creates poor client relations. Clients can question their lawyer ’s competency when deadlines are missed.

Enter everything that involves a time limit into the docket system. This includes:

Follow-up dates such as dates that a person’s response is due.

Due dates for courthouse return postcards to be received. Do not assume the court received something just because it was sent.

Date client was told to expect client’s work, such as the date the estate planning documents would be ready.

Here are some typical malpractice claims that the PLF has received this year that could have been prevented by proper docketing:

Failure to file cost bond within time limits

Failure to file an appearance or send an ORCP 69 letter and an order of default was entered

Failure to request trial de novo after arbitration

Failure to object to confirmation of a Chapter 13 plan

Missed the statute of limitations

Failure to file tort claim notice

Failure to timely file a construction lien

Although it is ultimately the lawyer’s responsibility to meet deadlines, any number of situations could arise that would prevent the lawyer from meeting a deadline. Every office should have a backup person who is responsible for bringing deadlines to the attention of the lawyers.

Tickler Systems
A good tickler system ensures that files are not put away and forgotten. Every file in the office needs a date by which it will be pulled and reviewed. If nothing is going on with the file, it may be time for the lawyer to initiate some action. At the very least, send a short note to the client advising that nothing is going on.

Each time a new file is set up it should be given an automatic 30-day review date. If this date is entered on your computerized calendar/docket as a recurring date, it will pop up on the calendar every 30 days for review. If you use a manual system, such as 3x5 cards in a box, the 30-day review card would need to be moved back a month each time it is pulled for review so that the file is kept on the 30-day rotation.

In addition to the 30-day review date, files should be tickled so they are pulled in time to respond to the docket deadline date. Some matters need more lead time to complete, so it is important to pull the file in plenty of time to complete what needs to be done before the docket deadline date. Continually waiting until the last minute and maybe having to get an extension of time to complete a matter can upset not only your client but opposing counsel and maybe the court as well. If this occurs often, clients begin to lose confidence in you.

Here are some malpractice claims that could have been prevented had the lawyer tickled a follow-up date:

Lawyer filed a motion to set-over the case and assumed, but did not check, to see if it was granted.

Case dismissed for want of prosecution (file languished in file cabinet without a review date)

Lawyer neglected his file resulting in a claim for fees and costs from opposing party.

Failure to file estate tax return within the extension period

A checklist can be developed for every type of matter a lawyer handles. Used correctly, a checklist can ensure that everything that needs to be done in a case is done. Some items listed on a checklist may not need to be done in every case, but at least they are listed as a reminder to the lawyer to decide whether or not something does need to be done.

The best way to use a checklist is to put one in each file and make sure the items are checked off with the initials of the person and the date the item is completed. Using one checklist and perusing it for each file is not the best use of a checklist. It is easy to become complacent and think an item has been completed when in fact it has not been.

The following malpractice claims could have been prevented had a proper checklist been used:

Failure to remove judgment lien from homestead during Chapter 7

Failure to perfect service

Failure to pay attorney’s lien after receiving notice of lien (checklist would have a place to list all liens received)

Failure to register a judgment

Failure to make a UCC filing

Failure to give notice to a lienholder on a trustee’s sale

The Professional Liability Fund has checklists for many areas of law. These checklists can be accessed at our website www.osbplf.org. After entering your bar number and the first six letters of your last name, click on OK. On the next screen, click on Loss Prevention Materials, and on the next screen click on Practice Aids and Forms. Under the Practice Aid Categories, you will find checklists under the various practice areas listed, e.g., Domestic Relations, Bankruptcy, Litigation, Criminal, etc.

Good Client Relations
Clients who are happy with their lawyers’ services do not file malpractice claims. If the lawyer has a good working relationship with the client and accidentally makes a mistake, the client is usually willing to work with the lawyer to correct or mitigate the problem. If the lawyer does not have a good working relationship with the client, the client is more likely to file a malpractice claim.

Look at how you operate your firm and how your staff relates to clients. Clients feel welcome and appreciated if phone calls are returned in a timely manner, if staff members treat clients in a friendly manner (and not as if they are an interruption) and if staff are pleasant with each other when clients are in the office. Clients also want to feel that the lawyer is giving them his or her full attention and that the lawyer is not being distracted by other things.

Look at your accounts receivable. If accounts receivable are high, it may be because the clients don’t feel they were given value for your services. These are the people who pay your bills and your salary. Good client relations often encourages clients to timely pay your fees.

By practicing safe systems that include good docket control, tickling files for review and action and using checklists to ensure that all the necessary steps have been completed, lawyers will be taking a big step in developing good client relations and preventing malpractice claims. Doing so will also promote the payment of client bills in a timely manner.

If you would like more information on office systems, or help in setting them up, call Carol Wilson, Dee Crocker, or Beverly Michaelis, practice management advisors, at the Professional Liability Fund, (503) 639-6911 or (800) 452-1639.

If you would like more information on office systems, or help in setting them up, call Carol Wilson, Dee Crocker, or Beverly Michaelis, practice management advisors, at the Professional Liability Fund, (503) 639-6911 or (800) 452-1639.

© 2004 Carol Wilson

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