10 Rules of the Road For Trial Lawyers – Protecting Clients and Preventing Legal Malpractice (Rule 2)

Rule of the Road No. 2: A trial lawyer must be diligent.

Rule 1.3 of the ABA Model Rules of Professional Conduct requires lawyers to be diligent when representing clients:

RULE 1.3. DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client.

Our obligation to be diligent implicates a number of issues. Some of the more problematic issues that result in malpractice lawsuits are the following:

Procrastination. Few of lawyers’ faults irritate clients as much as procrastination. The official comment to Model Rule 1.3 succinctly describes the problem:

Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

Model Rule 1.3, Comment [3]. In our experience, procrastination is a causal factor in most legal malpractice cases. Even if the lawyer’s procrastination does not result in a legal malpractice lawsuit, the lawyer’s procrastination can still cause the client significant harm.

Inadequate calendaring of statutes of limitation and other deadlines. We must have a method that we track the deadlines in every single matter and a system whereby we routinely verify the deadlines and make sure that we are meeting the deadlines.

If a lawyer has only one other employee, have the other employee calculate the dates. Then, verify that employee’s work. You or your staff should calendar statutes of limitation and statutes of repose with repeated reminders well in advance of the deadline. When filing a motion or brief, someone in the office must calculate and document when the response is due, factor in any different response time allotted for mailing or email, and allow the assigned lawyer sufficient time to prepare a proper response or reply.

If you also practice transactional law, calendar any important deadlines. If there is a deadline that you expect the client to follow through on, for example, a deadline to make an election on an estate and gift tax return, or renew a lease, make certain that you not only tell the client in person or on the telephone of when the client must make the election, but tell the client in writing. Then, diary the due date and, at a reasonable time before the due date, remind the client again in writing. Otherwise, if the client misses the deadline, and there is nothing in the file or billing records to show that you advised the client, as a practical matter, you didn’t advise the client and you may be liable for whatever losses that follow.

There are a number of software applications to assist lawyers to track deadlines. You likely can develop an adequate method of tracking deadlines using Microsoft Outlook. You can also buy jurisdiction-specific products to automatically calculate deadlines. The method of how your office tracks calendars and tracks deadlines is not important; what is important is that method is effective the you and your staff religiously follow the procedures.