Risk and Practice Management
Common Errors We See
Ronwyn North and Peter North, in their book "Managing Client Expectations and Professional Risk" (The North Report - available through the Nova Scotia Barristers’ Society Library), analyze risk management in relation to the legal profession. They distinguish characteristics of negligence claims from the underlying causes of those claims, pointing out that if we are to manage risk we need to understand more clearly the underlying causes of claims. The North Report identifies the following five underlying causes of claims:
- Professional attitudes to engagement matters (Failure to manage the client relationship)
- Failures in managing the legal issues
- Failures in asking, listening and explaining (Communication Errors)
- Exposure to simple oversight
- Lack of a useable trail
Some of the common errors we see include the following:
Communications Errors
- Failure to follow client’s instructions
- Disputed instructions
- Failure to obtain client’s consent or to inform client
- Poor communication with client
- Failure to document client instructions
Calendaring Errors
- Failure to know or ascertain deadline correctly
- Failure to calendar properly
- Procrastination in performance of service or lack of follow up
- Failure to react to calendar
So, how do you avoid errors? The following is some useful advice:
Conflicts
- Recognize conflicts
- Run conflict checks at first contact - before your assistant sets an appointment, also when file opened and whenever a new party enters the case
- Know who your client is – corporation/parent/child/spouse
- Avoid representing parties with adverse or potentially adverse positions
- Refer out to ILA
- Be mindful of your fiduciary duties
Delegation
- Be specific about results you expect
- Communicate your expectations clearly. Be as specific as possible about the scope of the task, the extent to which the delegate has authority to make independent decisions, the form of the expected work product, the time by which you require the product and the extent to which deadlines are subject to further negotiations
- Continue to keep active in the file; remain in contact with the client and delegate or team
- Indicate all critical dates and time lines
- Get a commitment on the completion date
- Have a follow up system and a back-up plan in place
- Delegate appropriately - follow up, seek confirmation - remember you have delegated, not abandoned the matter
Systems and Procedures
- Review in detail with client all documents he or she is signing - provide documentation to client for review in advance of appointment
- Establish a good checklist to take you step by step through a case - outline the time lines involved in those procedures
- Keep checklists up to date and cover all steps of a case
- Keep a checklist on each file
- Pay attention to detail