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Lawyers are persons admitted to practice law in a specific state and the federal courts. They are authorized to perform both civil and criminal legal functions for clients, including drafting legal documents, providing legal advice, and representing individuals and organizations before courts and administrative agencies. In a more general sense, an attorney is one who is authorized or appointed to act in the place of and on behalf of another.

In recent years, the frequency and severity of professional liability claims against lawyers appear to be rising. There are at least three reasons for this. First, it is no longer as difficult as it once was to sue an attorney. In fact, there are lawyers and law firms specializing in both pursuing and defending professional liability claims against attorneys. Although lawyers usually attempt to avoid litigation against each other, one of the American Bar Association’s canons of ethics actually encourages attorneys to pursue an action against a lawyer who has wronged a client. Clearly, attorneys appear increasingly less reluctant to make professional liability claims against one another.

A second reason for the rising frequency and severity of professional liability claims is that the law has become increasingly complex thereby adding to the possibilities for error. This trend is exemplified by the growing number of specialty fields that have become a part of current bar association meetings. Regardless of the number of seminars they attend and irrespective of their efforts to pursue continuing legal education, attorneys must keep up with innumerable developments. For those attorneys who do specialize in a certain branch of law, the trend of recent cases is to hold such persons to even higher standards of professional conduct—far beyond those of general practitioners. Finally, several jurisdictions have found general practitioners liable for professional negligence where, in the court’s opinion, the attorney should have but failed to refer his client to a specialist.

The third reason for the increasing frequency of suits against lawyers is that the requirement of contractual privity, as a prerequisite for professional liability, is eroding. In recent years, a significant number of jurisdictions have ruled that a claimant does not need to establish a direct contractual relationship in order to pursue a professional liability claim against an attorney. For example, assume that an attorney representing a criminal defendant fails to file a timely appeal. Although the lawyer is not in privity of contract with the defendant’s wife, she sues the attorney for loss of consortium, alleging that his negligence caused her husband to unjustifiably serve a jail sentence.

Docket control

Claims alleging failure to comply with statutory time limitations are frequently made against attorneys. Many such errors can be prevented if an attorney or law firm maintains a specialized docket control system where key dates and deadlines are diaried and distributed periodically. Such systems must be: (1) maintained by someone other than the attorney actually handling the case and (2) structured so that reminders of key events are provided well in advance of the actual cutoff date for taking a particular action. Thus, for a motion that must be filed on April 1, the attorney should be reminded of this fact at least a month earlier. It would do no good to advise her about it on the cutoff date itself.

Client Contact

To most laymen, the typical legal action requires an inordinate amount of time to resolve. While waiting for their case to proceed, clients often attribute delays to attorney's inaction or indifference, rather than to normal time lags inherent in the legal process. At times, client dissatisfaction manifests itself in professional liability claims. Thus, attorneys must keep clients continually advised about the progress of their cases. By simply returning phone calls, writing brief and regular status reports, and sending copies of relevant papers and filings associated with their clients’ cases, attorneys can avoid such problems.

Area of Law Relating to Claims

The study revealed that attorneys who litigate account for a high percentage of professional liability claims. One-fourth of the claims were made against personal injury plaintiff’s attorneys alone. Lawyers practicing in other areas, notably in business, property, family, criminal, and personal injury defense law, litigate frequently, and such work was also estimated to have generated a substantial number of claims.