My favorite expression every morning is: “Well another statute of limitations has expired.” Black humor unless you have ever worked in loss prevention in law firms. There are things out there just waiting to bite lawyers because they are easy targets when the deal has failed or no one else has assets.
Conflicts have always been major sources of claims against lawyers. Divided loyalty is an easy concept for a jury. In a clean case otherwise, a good plaintiff’s legal malpractice lawyer can prevail if he or she has a conflict lurking in the file. Lawyers and firms just do not pay enough attention to conflicts, particularly after the file has been opened and is being handled. You need to regularly address issues for conflicts and then document fully any discussion and waiver. Memories fade when litigation is later the case. Have the consent (a knowledgeable one) in your file, all fully documented.
We all know the lawyer who has never met a conflict he did not like. Never use them as a model. One conflict can wipe him out, or you. Don’t forget “issue” or “positional” conflicts; “close” or family corporation conflicts; shareholder and officer conflicts; corporate organizers; former clients and corporate family conflicts. It is not an easy area and you need consults with others in these areas.
My friends at the carrier ALAS look at their claims history and advise that in addition to conflicts:
(1) Mistakes are the loss prevention challenge for firms these days;
(2) Litigation practice losses continue to mount;
(3) Lateral lawyer claims are a big issue and need to be managed better before they occur;
(4) Lawyers should document risks facing clients and confirm important client communications in writing.
This is all good common sense. Busy lawyers sometimes forget to stop and check. Discipline yourself for the slow down and check all carefully approach. Integrate laterals carefully into this culture of loss prevention and constantly stress to all the avoidance of conflicts.
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