Risky Business – Managing Your Files and Practice
The transition from law school to law firm can be daunting and sometimes frustrating.
Unlike law school examinations, legal issues in practice seldom come packaged in hypotheticals designed to flush out legal principles that were taught in that semester. Instead, the ability to recognise legal issues in any matter requires one to be constantly assessing new facts and evolving circumstances.
Practice matters can range from complex corporate restructuring and financing, requiring one to quickly master legal principles that were never encountered in law school to dealing with relatively straightforward domestic or commercial problems that require client relationship and organisational skills rather than legal skills.
Effective delivery of legal services is a combination of the ability to recognise and resolve legal issues as the matter evolves and manage matter risks that arise throughout the course of the client engagement.
As a junior lawyer, you are likely to be assigned only specific tasks of a matter or a task which at first glance may appear to be within your ability but in hindsight was beyond you. How do you manage practice risks in such situations? It can be challenging when one is just commencing legal practice. Practice risk management skills are acquired and honed over time while working on files and dealing with “live” clients.
A combination of formal structured training and learning by doing is essential for acquiring sound risk management practices. Ideally, you learn about risk management from the senior lawyer working on the file with you. Matter risks are highlighted to you as and when they surface and you receive guidance on how to manage and mitigate them.
When the practice of law was less complex and specialised, when clients were less demanding, it was possible to find time to sit down with a senior lawyer and learn by example and discussion. Unfortunately, the pressure of modern legal practice and the sophistication of today’s client work no longer presents much opportunity for such a leisurely approach to learning the art of legal practice.
The learning process is now often one of osmosis, making it difficult to acquire effective practice risk management skills while on the job. This difficulty is exacerbated by current work from home arrangements, where even opportunities to “watch and learn” are diminished.
This article will set out an overview of the life cycle of any legal matter and the risk mitigation steps that may be taken when managing the client engagement. Understand the purposes of the different phases and related key activities of a legal matter and develop your own risk management protocol.
Lifecycle of a Typical Legal Matter – The Four Phases and Key Activities
|Key Activities / Purposes
|Formalising the Client Engagement
|Delivery of Agreed Legal Services
|Closing the File
Matter Management – The Four Phases and Potential Risks
|Formalising the Client Engagement
|Delivery of Agreed Legal Services and Matter Management
|Closing the File
Matter Management – Risk Mitigation Steps
When Tasked to Assist in a Matter
Ensure you comply with the firm’s risk management policies and procedures. For example, client identity checklist (KYC Form) and conflicts clearance must be completed before opening a file. At the end of the matter, ensure that file closing protocol is followed.
When delegated work, clarify what you need to do if you are unsure.
Take responsibility for aspects of the file which you have been delegated. Sometimes this means reading the entire file to understand the big picture. This will usually help you focus on the limited task you have been assigned.
Check limitation periods and deadlines if you are not told.
Anticipate the logistics of production and delivery of the task or document. Alert your supervising solicitor to potential difficulties in meeting deadlines, the matter itself, the client, resources, your skill level or your workload.
Communication is fundamental and clients should always be kept properly informed of all significant developments. A failure to communicate with the client can lead to dissatisfaction and often a complaint or claim.
Do not create unrealistic expectations.
Always return phone calls and e-mails without delay and never leave a call unanswered. No matter how demanding and difficult your client is, keep up the dialogue with your client.
Document everything. Proper file notes recording instructions received and advice given can be an effective defence against an allegation of professional negligence. They are also invaluable when handing over a matter as it enables the new solicitor to work out where the matter is and plan the next steps to be taken.
E-mails and Other Means of Electronic Communication
E-mails can potentially result in client confidentiality breaches. Be sure to address the e-mail correctly as you may have several similar e-mails in your address book. Turn off the auto-complete feature to mitigate the risk of misdirected emails.
Use the “CC” feature with care and “BCC” feature sparingly. “CC” indicates someone needs to be informed of the transaction or who may need to assist with certain aspects of the matter. If you are copying someone to request that they follow up with action, it is courtesy to indicate in the e-mail so that everyone knows why you are copying them. When the “BCC” feature is used, someone who receives a blind copy can forward it or discuss it. The original recipient maybe offended that they were excluded from knowledge that the person who was “BCCed” also received a copy of the email.
Remember that any written communication is permanent. Take care not to become too informal when communicating electronically, whether by e-mail or other electronic means (e.g WhatsApp or Telegram). Never say anything in an e-mail you would not say to someone’s face. Be mindful that e-mails and other forms of electronic messages can easily be forwarded or copied and seen by others without your knowledge.
Never comment or discuss any client or client matter in any form of online media. Sharing this type of information, even unintentionally, can result in legal action against you, the firm or even the client.
If someone posts an inaccurate or negative comment about the firm or any of the firm’s clients, do not engage in the conversation without discussing with your supervising partner.
Also, be mindful of recommendations and comments you post about other current and former lawyers of the firm on professional social networking sites. They can have consequences, even if you are making the recommendations personally and not on behalf of the firm.
Avoid online hostile communications. If someone posts a statement with which you disagree, voice your opinion but do not escalate it to a heated argument. Avoid any communication that could result in personal, professional or credibility attacks. Comments or quotes maybe harmless but can taken out of context and be mis-quoted, resulting in unwarranted negative consequences professionally.
The internet is not anonymous and does not forget. Search engines can find posts years after the publication date.
Proofread Your Work
Re-read all letters, documents, e-mails and other electronic messages before sending. No matter how pressed for time you may be, the importance of proofreading cannot be underestimated and may save you misunderstandings or embarrassment later.
Precedents are very useful for new lawyers. However, care must be taken when using precedents. Often, mistakes are made with the wrong names or dates in the document. Further, never assume that boiler plates from precedents are perfect.
Managing Your Time
There are two factors when establishing priorities of tasks, urgency and importance. Do not confuse them.
Something that has to be done immediately may be trivial but it is still urgent. A task that is important but does not need to be done immediately is not urgent. What is important can be difficult to assess because it is subjective. A task may be important to the firm, partner, client or to you personally. Try to be objective and impartial when assessing importance.
Missed limitations and deadlines are a major source of claims against lawyers. Establish realistic deadlines for all tasks and follow them. Do not leave tasks to the very last minute as the unexpected will happen.
Long or difficult tasks will inevitably come your way, be it a major trial or a major corporate transaction. It will be a challenge to juggle such time-consuming tasks with other workload. Break the task into manageable units, setting targets for the completion of each part and build in some flexibility to cope with delays or unforeseen difficulties.
Avoid procrastination. Not knowing what to do or tackle a matter due to its complexity or insufficient instructions can lead to procrastination.
You Made a Mistake! What Now?
Do not be afraid to make a mistake. If you do make a mistake, do not hide it. Admit to it and discuss with your supervising solicitor. It is important for the firm to assess whether it should give notice of a claim to its insurers. A delay in giving timely and prompt notice of claim to the insurance company may jeopardise the firm’s coverage for an otherwise covered claim under the firm’s professional indemnity insurance policy.
Risk Management is an Investment in Yourself
Claims can happen across all practice areas in law firms of all sizes and against lawyers of all levels of experience. Receiving a claim is stressful. It is not only time-consuming defending the claim, it affects one’s confidence and professional credibility. Take time at the beginning of each matter to understand the scope of the engagement and consider any risk management issues to minimise the risk of a claim.
Commence your career with sound risk management practices and continue to focus on best risk management practices throughout your career. Make use of every opportunity you are given to improve and develop not only your legal but also risk management skills. Do not accept less than the highest quality of work and service from yourself. Only in this way will you develop into a first-rate practitioner.