Common Family Law Errors and How to Mitigate Your RisksZindaba Tembo
Family law is the area of law that deals with matters of the family. This includes, but is not limited to, prenuptial agreements, separation, divorce, child custody, child support, adoption and surrogacy. Family law is one of the areas of law with a relatively high number of legal malpractice suits. However, these lawsuits are typically low severity cases. About 70% of the claims received in this area close out with no loss payment.
Emotions run high in these cases and can often leave the client feeling dissatisfied with the service provided by the attorney. This may be the reason why there are so many claims but only a few with substance. This emotionally charged environment, coupled with the complexities of family dynamics and other complex issues such as division of property and taxation, make a perfect recipe for a potential legal malpractice suit. In this blog, we’ll explore the most common errors and how you can mitigate the risk of a legal malpractice claim.
ERROR #1: INADEQUATE DISCOVERY OR INVESTIGATION
The top error for family law is inadequate discovery of facts or inadequate investigation. In cases involving assets or division of property, a lawyer is charged with the responsibility to adequately investigate the value of the assets and liabilities. In such cases, a lawyer must extensively examine and evaluate the net worth of the parties. Additionally, if animosity exists between the two parties, it is common for one party to conceal assets. To mitigate against this error, an attorney can employ the use of experts like accountants and appraisers. Failure to conduct due diligence may result in a lawsuit when the client discovers there was more on the table than what was offered. Should a client choose to forgo discovery, a lawyer must explain the consequences and document the client’s decision.
ERROR #2: FAILURE TO OBTAIN CONSENT OR INFORM CLIENT
Another common error for attorneys in this area of law is failure to obtain the client’s consent or inform the client. Lawyers have a duty to disclose information prior to embarking on a settlement or any other pertinent legal decision. Remember, the client is the employer, so every important decision or option must be offered for consideration, especially in family law cases where decisions can significantly alter an individual’s life. Failure to advise or disclose information can be detrimental to a client and could invoke a legal malpractice lawsuit. Lawyers must not only seek to provide the client with information but must understand and act according to the client’s instructions.
To avoid this error above, consult with your client at every step of representation – strategies, costs, settlement agreements, etc. Documents signed by a client can serve as proof of record that options were offered, risks were discussed, and consequences were outlined. This can also serve as proof of adequate representation.
ERROR #3: CONFLICTING INTERESTS
Furthermore, we receive a lot of claims in this area resulting from conflicting interests. Attorneys must be aware of the conflicts that can exist and/or develop during representation. Past representation of relatives in different areas of law can create conflicts for the attorney in the existing case. To recognize potential conflicts, firms must have a system in place that contains parties that have been represented, along with protected persons. Also, when firms merge, attorneys must be able to combine a list of past clients. This can help identify and prevent conflicts. Conflicts can also develop from the onset. For example, when an attorney represents a couple in a prenuptial agreement, s/he cannot protect both interests. If a conflict arises, an attorney can draft documents such as conflict waivers or even withdraw from cases, when necessary, to mitigate the risk of a legal malpractice claim.
ADDITIONAL RISK MANAGEMENT TIPS
Other ways to mitigate risks in this area of practice include managing expectations and effective communication. Because these cases are highly emotional, attorneys must manage the client’s expectations by explaining the possible outcomes of the case and ensuring that the client’s goals are realistic. Furthermore, attorneys must communicate effectively. This means that an attorney has a duty to ensure that the client has a basic understanding of the agreement that is being entered. Clients in this area of practice are likely relatively new to the legal intricacies and legal jargon, so it is the lawyer’s duty to ensure that they make informed decisions. Agreements entered without thorough understanding may leave a client with a personal vendetta against the attorney and are grounds for a legal malpractice lawsuit.
Attorneys must always remember that their relationship with a client is fiduciary in nature, meaning that the client trusts that the attorney is acting in his or her best interest. It is, therefore, the duty of the attorney to ensure that the client’s interests are adequately represented. This means that the attorney must advise, explain and ensure that the client understands the strategies, offers and impact of decisions.
To conclude, even though family law is a higher frequency, low severity area of practice, some cases can be costly depending on the underlying case. Apart from the cost of the lawsuit, attorneys must recognize that legal malpractice suits can be time consuming (affecting billable hours) and can have a negative impact on the firm’s reputation. The benefit of mitigating against these risks is greater than the implicit and explicit costs associated with a legal malpractice lawsuit.