"Understanding and avoiding potential conflicts of interest, organizing your practice, and fostering healthy client relationships will help you prevent ethics complaints and malpractice lawsuits." Deborah M. Nelson

1. 36 March 2015 || Trial
Understanding and
avoiding potential
conflicts of interest,
organizing your
practice, and
fostering healthy
client relationships
will help you prevent
ethics complaints
and malpractice
lawsuits.
By || Deborah M. Nelson

2. Trial || March 2015 37ONURDONGEL/ISTOCK
Being a plaintiff lawyer involves an immense
amountofmultitaskingandjugglingofrespon-
sibilities. There are a million moving pieces,
from client expectations to financial expenses,
so it isn’t surprising that we labor under stress
and fear legal malpractice claims. Organize
your law office and your practice so that errors
are less likely, and be aware of the pitfalls that
can lead to legal malpractice claims.
Most legal malpractice claims fall into a few
categories: substantive mistakes, conflicts of
interest, administrative mistakes, and client
relations. Most of these are preventable.
Substantive Mistakes
One of the best ways to avoid making substan-
tive mistakes is not to dabble: The shingle you
hang outside your law office should not be big
enough to roof a house. Instead, hone your
skills in a few distinct areas. Remember not
to market yourself as an “expert” or a “certi-
fied specialist” in a field unless you hold that
designation,1 and don’t make false or mislead-
ing statements about your experience or the
services you provide.2
Before you accept a case, make sure you are
qualified to handle it. If you aren’t, work with a
lawyer who has significant experience in that
practice area. Consult your state bar’s ethics
rules and the ABA Model Rules of Professional
Conduct to determine what disclosures you
must make to the client regarding cocounsel,
and get the client’s consent in writing. For
example, in Washington, a lawyer may asso-
ciate with other counsel only if the lawyers
split their fee in proportion to services each
lawyer provided or assume joint responsibil-
ity for the representation; the client must also
agree in writing to the association, and the
total fee must be reasonable.3 Give the client
the associated lawyer’s contact information,
not just yours. Remember that you and the
other attorneys, as well as each of your law
firms, are equally responsible for the case.
Agree on the division of labor, attorney fees,
and litigation costs at the outset. And monitor
your cocounsel’s work to ensure that deadlines
are being met.
Whether taking on a case alone or with
cocounsel, it’s crucial that your client under-
standsthefeearrangement.Feescanbeasource
of disagreement, so explain everything thor-
oughly and have the client sign a written fee
agreement as part of the initial retainer. Even
in contingent fee cases, clients may worry that
the clock is ticking, and sometimes, they are
ON LEGAL MALPRACTICE
THE DOOR
SHUTTING
Posted with permission of Trial (March 2015)
Copyright American Association for Justice,
formerly Association of Trial Lawyers of America (ATLA®)
Posted with permission of Trial (March 2015)
Copyright American Association for Justice,
formerly Association of Trial Lawyers of America (ATLA®)

3. 38 March 2015 || Trial
Fortify Your Practice || Shutting the Door on Legal Malpractice
ONURDONGEL/ISTOCK
hesitant to contact their lawyer with
questionsorcriticalcaseupdatesbecause
theyareafraiditwillcostthemmoneyto
talk. Reassure them that this is not true
whentheyarespeakingwithyouandthat
it is crucial to provide important case
information and updates.
Conflicts of Interest
This is not just a trap for new lawyers.
You often have to anticipate a conflict
before it becomes readily apparent. Con-
flictscanexistwhereyouhavemorethan
one claimant seeking recovery from the
same, limited source of funds. This can
occur in many types of cases, including
auto, medical negligence, professional
liability, commercial disputes, mass
torts, and premises liability.
In auto and medical negligence cases,
knowing the minimum liability insur-
ance limits can help determine whether
sufficient funds exist to adequately com-
pensate all the plaintiffs. In other cases,
such as premises liability, you may have
to investigate the defendant to deter-
mine its assets beyond available insur-
ance. If the pool of resources is not large
enough to accommodate the potential
claimants, this conflict may prevent you
from representing multiple claimants.
Conflicts also arise with regard to
tortfeasors and claimants. For example,
consideranautocasewhereathirdparty
injures the driver and passenger. Ordi-
narily,thepassengerhasnocontributory
negligence, but the driver may. Tread
very carefully here. If the third party
has insufficient funds to cover both
claims, or if the tortfeasor and one of the
claimants are married, you should rep-
resent only one party, not both, because
a conflict exists among all parties. In
some jurisdictions, the attorney must
withdraw from all of their cases.
Carefully investigate potential and
actual conflicts before agreeing to rep-
resent any party and before receiving
confidential communications that trig-
ger your fiduciary duties. Receiving
confidential communications from one
client can disqualify you from accepting
others. If your state has a rule on duties
to prospective clients, strictly adhere
to it to avoid conflicts and ensure that
potential clients know what to expect in
their initial dealings with you.
The ABA Model Rules prohibit a law-
yerfromrepresentingaclientif“therep-
resentation involves a concurrent con-
flict of interest.”4 A concurrent conflict
of interest exists if your representation
of one client will be directly adverse to
another client or if there is a “significant
risk” that your representation of one or
more clients will be materially limited
by your responsibilities to a current cli-
ent, a former client, or a third party, or
your own personal interests.5 Although
Rule 1.7 permits you to obtain a written
waiver from the client to undertake rep-
resentation despite a conflict in certain
circumstances, ask yourself whether
this is a good idea. Use conflict waivers
sparingly. Clients may not understand
the complexities of conflicts of interest
and the ways these conflicts can harm
them. And in the event of a waiver or
request for client consent to the con-
flict, the better practice is to advise the
client to obtain independent legal advice
regarding the conflict. Always err on the
side of caution and decline representa-
tion that fails the smell test.
In medical negligence, professional
malpractice, products liability, and busi-
ness torts cases where you represent
morethanoneclaimantagainstthesame
defendant, be particularly careful about
aggregate settlements. Avoid harming
any individual claimant. The Model
Rulesrequiretheattorneytodisclosethe
existence and nature of the claims to all
clientsandobtaineachclient’sinformed,
written consent before attempting to
reach an aggregate settlement.6 Violat-
ing the Model Rules or your state’s rules
may subject you to disciplinary action.
Although the Model Rules “are not
designed to be a basis for civil liability,
. . . a lawyer’s violation of a rule may be
evidenceofbreachoftheapplicablestan-
dard of conduct,” which may trigger or
bolster a legal malpractice claim.7 When
encountering a complex conflicts issue,
consult an experienced ethics attorney
before representing the client.
Administrative Mistakes
These should be the easiest ones to
avoid, because they relate to how you
run your law office. Although this could
be the subject of an entire article, the fol-
lowing are the most important tips for
avoiding legal malpractice claims.
Statute of limitations. Never take a
case too close to the statute of limita-
tions deadline. Although people have
legitimate reasons why they don’t con-
tact lawyers until very close to the end
of the limitations period, more often
than not, they simply haven’t been as
diligent as they should have been in
seeking legal representation. It takes
time to determine whether a case is
meritorious, what evidence may prove
the case, and many other issues. Taking
a case too close to the statute of limita-
tions deadline assumes no troublesome
The shingle you hang outside your
law office should not be big
enough to roof a house. Instead,
hone your skills in a few
distinct areas.

4. Trial || March 2015 39
issues exist, but you will have to face the
consequencesifyourpreliminaryassess-
ment is wrong.
Some attorneys believe it is OK to
accept a case close to the statute of limi-
tations expiration, but this is a slippery
slope. A bad case is a bad case, regard-
less of the tortfeasor’s insurance limits,
damages, and liability. Establish rules for
handling potential clients who contact
you near the statute of limitations dead-
line, and choose a metric for how close is
too close. Then, stick to your rules.
Bewaryofdifferentoruniquestatutes
oflimitations.Forexample,ifyourclient,
a resident of Indiana, was injured out of
state, you must file suit according to that
state’s statute of limitations, which may
be shorter than Indiana’s. Many home-
owners insurance policies require that
a lawsuit be filed no later than one year
after the date of loss. For long-term dis-
ability policies, the deadline is usually no
later than three years from the date on
which the proof of loss is due, regardless
of whether all administrative remedies
havebeenexhausted.Ifyouaremakinga
claim against a government entity, many
states require you to file a notice of claim
before a lawsuit. Similarly, some states
have presuit notice requirements for
medical negligence cases.
In cases that appear to be negligence
but may constitute an intentional act,
you may want to assert both. Sometimes,
the statutes of limitations for these two
claims differ, and you must file before
the shorter one expires, or one of the
claims may be barred as untimely. In
Washington, for example, the statute of
limitations for personal injury is three
years8 and the statute of limitations
for an assault is two years.9
Because a
personal injury resulting from a fight
may ultimately be determined to have
been an assault or a personal injury, and
because there are often insurance con-
siderations regarding the characteriza-
tion of the cause of action, you should
MILLION DOLLAR ADVOCATES FORUM

5. 40 March 2015 || Trial
Fortify Your Practice || Shutting the Door on Legal Malpractice
ONURDONGEL/ISTOCK
file the lawsuit before the expiration of
the earliest statute of limitations.
Service of process. Before filing the
lawsuit, research the defendant to deter-
mine where and how to serve it. With
corporate defendants, confirm that you
are suing the correct entity and that you
serve it according to your state’s rules.
Many states differentiate between for-
eign and domestic companies for service
of process. In premises cases, determine
whether an entity or person other than
the tortfeasor owned the property. In
every case, once service has been effec-
tuated, review the returns of service to
confirm the correct defendants were
served properly. During the initial dis-
covery, send requests for admissions to
confirm that service was sufficient to
eliminatethispotentiallydeadlydefense.
Filing early. Defendants and wit-
nesses can disappear, trial dates can
be set more than a year in advance,
and defendants usually are hesitant to
resolve claims without a trial date loom-
ing, so file lawsuits early. Of course, first
confirm that the case is meritorious and
wait until you have marshaled the nec-
essary evidence. Early filing will move
the case forward faster and reduce the
likelihood that you miss a statute of limi-
tations deadline or that a defendant is
not timely served.
Client Relations
Poorclientrelationscanleadtomalprac-
ticeclaimsandethicscomplaints.Weare
in a service business—remember that,
and treat your clients accordingly.
MORE ON LEGAL MALPRACTICE
Visit the Web pages below for
additional information.
AAJ SECTION
Professional Negligence
www.justice.org/sections
AAJ LITIGATION GROUP
Professional Liability
www.justice.org/litgroups
AAJ EDUCATION PROGRAM
2014 Winning Medical Negligence Cases
with Rules of the Road Seminar
www.playbackaaj.com
Client selection. I don’t represent
everyone who contacts me, and neither
should you. Look for red flags, such as
multiple prior attorneys. Although a
client may have legitimate reasons to
switch attorneys, this is a sign that it
may not be a good case or a good client.
A client complaining about his or her
former attorney, claiming the case is “a
slam dunk,” or talking about the amount
of money he or she expects to receive
signals unreasonable expectations.
Watch out for clients who have
advisors—nonlawyer family and friends
telling them what to do. Such clients
usually rely on their advisors rather than
trusting you and your experience. They
also may disclose confidential informa-
tiontotheseadvisors,whichcouldwaive
attorney-client privilege. Remember to
always trust your instincts. Bad cases
don’t improve.
Writtenconfirmation. If you or your
staff speak with a potential client and
you decide to decline representation,
send a declination letter or email imme-
diately that states that you will not be
representing the person or entity or pro-
tecting their legal interests, and that you
are not providing any legal advice. Offer
a general warning about potential stat-
utes of limitations or other case dead-
lines, and advise contacting an attorney
immediately. Some lawyers quote an
exact statute of limitations, which may
do more harm than good if you don’t
know the details necessary to deter-
mine exactly which one or ones apply.
Advising them that there are deadlines
that can extinguish their ability to obtain
recovery may be better.
Litigation preparation. As soon as
you take a case, start informing your
clients immediately about what they
must do. In the short term, keep them
apprised of what you will be doing in
60-day intervals, and always send them
copies of important documents. Give
them a sample set of initial discovery
requests to fill out when they hire you
so that you can begin collecting the evi-
dence and information that the defen-
dants will request.
In any personal injury case, explain
that medical history will be relevant
and medical records are discoverable.
If your client’s finances are at issue,
warn that his or her tax returns and
financial records will be disclosed. Be
honest about the problems and dif-
ficulties with the case. Give clients an
approximate timeline for the litigation,
butremindthemitcouldtakelongerdue
to unforeseen delays. Never guarantee
an outcome, and do not provide a case
value until you have done the research
necessary to give an informed opinion.
Allay your clients’ fears. Remember
that some clients understand very little
about the legal system. For example,
some clients worry that their lawyer
cannot attend their deposition. Provide
all your contact information so they
know how to reach you, and encour-
age them to ask questions. Return their
calls promptly, and give status updates,
Establish rules at your firm for
handling potential clients who
contact you near the statute of
limitations deadline, and choose
a metric for how close is too close.

6. Trial || March 2015 41
especially after court hearings, deposi-
tions, and meetings with experts. Meet
in person periodically, and inform them
when you are out of the office for an
extended period of time and who in
your office they can talk to during those
absences.
Attorney-client privilege. Explain
the attorney-client privilege—how it
works, when it applies, and why it is
important. Most clients don’t realize
that forwarding your emails or com-
munications to third parties waives the
privilege and makes these communica-
tions discoverable. Explain to them that
theattorney-clientprivilegealsoensures
that they can discuss their case freely
with you.
Social media. In the digital age, you
musteducateyourclientabouthisorher
social media presence and how it affects
litigation. Explain that anything he or
she does or posts in a public forum—
whether it is on Twitter, Facebook, or
LinkedIn—will be discoverable by the
defense and can be used to harm the
case. And do your own research. For
example, see if your client’s Facebook
page is public and what he or she is post-
ing.10 My firm has a flyer that we give
to clients, warning them about social
media, and we have refused to repre-
sent clients who post harmful things on
their social media sites. Emphasize to
your clients that social media accounts
are evidence and that they cannot delete
what they have posted or what they have
allowed others to post.
Being a plaintiff lawyer involves
unique challenges and struggles. But you
can avoid legal malpractice claims with
planning, organization, and a commit-
ment to your clients.
Deborah M. Nelson is a
partner with Nelson Boyd
in Seattle. She can be
reached at nelson@
nelsonboydlaw.com.
Notes
1. Model R. Prof. Conduct 7.4(d) (ABA 2013).
2. Model R. Prof. Conduct 7.1; see also Model
R. Prof. Conduct 7.2.
3. Wash. Rev. Code Ann. §1.5(e) (West 2014).
4. Model R. Prof. Conduct 1.7.
5. Id.
6. Model R. Prof. Conduct 1.8(g).
7. Model R. Prof. Conduct, Preamble (20).
8. Wash. Rev. Code Ann. §4.16.080(2).
9. Wash. Rev. Code Ann. §4.16.100(1).
10. For more information on social media use,
see Tad Thomas, The Ethics of Social Media,
Trial 16 (Jan. 2014).
NEED DIRECTION ON
NJ REFERRALS?
Respected, Reliable, Referral Partner
(973) 635-5400
One Main Street • Chatham, NJ 07928
Jersey City • North Bergen • Sea Girt
www.njatty.com
Twelve of our nineteen lawyers are Certified by the Supreme Court of New Jersey as Civil Trial Attorneys,
and as such, are able to pay referral fees without the necessity of your participation pursuant to R:1:39-6(d).
Respected, Reliable, Referral Partner