This past Friday I attended a Law Practice Management Section Council meeting at the NCBA Bar Center. This is the first meeting I’ve attended in person. Usually I am on conference call and booming my thoughts to the group via voice box. Thanks to the Chair, Lee Rosen, these meetings are about the least boring I’ve ever been in and worth the two hour drive up to Raleigh.
At each session, we have an educational “mini-CLE” for the council members. This past Friday’s mini-CLE was presented by Mark Scruggs of NC Lawyers Mutual which provides services to attorneys licensed to practice in North Carolina. Mark engaged us in a great “refresher” session on the top malpractice issues and how to avoid them. Many of these tips are ones that every attorney knows by heart, but it can’t hurt to occasionally review the basics.
For the attorney with a virtual law practice, it might good to review these rules and put them in the perspective of how they apply to the use of technology to deliver legal services online. Here are some of the reminders for avoiding malpractice that Mark discussed. He did not talk about virtual law practice, but I’ve added here below how I thought they related to an attorney practicing law online. These tips were based on those issues for which his company sees the most malpractice claims filed.
1. Out of state cases. Check the statute of limitations with each incoming case immediately because the statute of limitations may be different in another state. Out of state cases may also bring up issues of UPL in other jurisdictions. Solution: have a method of flagging these out of state cases immediately so that these may be checked before the attorney responds. Most virtual law offices have this form of red flag and jurisdiction check built into the system.
2. Docket control systems to avoid missing deadlines. Have a calendaring and/or ticker system in place to remind the attorney about these deadlines. Mark recommended a double entry system that is monitored. I wondered how a solo practitioner could achieve that without a virtual assistant or paralegal to do the monitoring. However, the technology itself might serve that purpose and adequately remind the attorney just as well as a live assistant would.
3. Conflict of interest checking. Virtual law offices have to be careful about not only running a thorough check on the online parties, but also on the in-person clients. As more information is gathered online from the prospective client through online forms or worksheets, this check should be able to be run multiple times to ensure that there are no conflicts. Another issue with conflict of interest checking involves determining how far removed the relationships need to be in order for the attorney to take the representation. The virtual law office software that I use has a conflict of interest checking system that rates the relevancy of the entries so that I can see which cases have names of parties that are similar to the current prospective client and then choose the more relevant ones to review further to make this case by case decision.
4. Client selection. Carefully choose your clients and know when to reject a prospective client. The issue here for the virtual law practice is that on a case by case basis the attorneys needs to determine whether the client’s matter is something that may be competently handled online or if a full-service firm is necessary. Having an online referral database on the virtual law office is very handy for quickly referring out clients that have a matter not related to the services provided online or which require a full-service representation.
5. Retainer or engagement agreements are a must. The key is to make it very clear, especially with unbundling legal services online with a virtual law office, what services the attorney will provide and what services he or she will not provide. The agreement must set out what the responsibilities are of the client as well as the attorney. Clearly define the scope of the representation and even lay out for the clients what the risks might be or that you cannot guarantee the results depending on what the case entails. Make sure that you have some form of acceptance of this agreement. With a virtual law practice, this may be achieved with a clickwrap agreement and through the processes set up in the technology to ensure that the client has adequate notice and acceptance of the terms.
6. Maintain good client relations. Communicate with your client. O.k. no problem here with the virtual law office. In fact, this may be one of the areas where the virtual law practice has a real strong edge on a traditional law office. Clients have 24/7 access to their case files, the statuses of their matters, and they can drop you a note whenever they need to feel more at ease with the relationship. There are autoresponders to let the clients know when the attorney has viewed their message. Communication is less of an issue with a virtual law office and clients also feel like they have more control over their legal matters.
7. Document any changes in the case file. The case file should be well documented to show the progress of the case and its status. Again, the virtual law office automates much of this work for the attorney and it is all kept in the client’s case file with time and date stamped on each transactions for the attorney and client to view for the record.
8. Don’t go out of your comfort zone. Don’t dabble in areas of law practice in which you have no experience. This is a competency issue and again, I think having a good online referral database helps the virtual law office attorney to easily refer cases out to another attorney’s virtual law office that does handle that practice area that he or she may not have enough experience in. The virtual law office also makes online collaboration easier to achieve if the attorney wants to seek out co-counsel to learn how to handle a new practice area.
I thought all of these tips were really useful reminders for all of us in the profession. And I felt reassured when I checked them with the practices of my own virtual law office that I was doing everything I could using the technology to avoid these more common malpractice risks. Thanks again to Mark Scruggs for the mini-CLE!