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To avoid becoming a legal malpractice plaintiff – five steps, but three are implausible

An article in Paradigm, Winter 2012 at 24, by Clayton Wire lays out five things companies should consider to lessen the likelihood that they will need to resort to a malpractice claim. Companies, he writes, “should never proceed forward with representation by outside counsel without a written fee agreement.” Each agreement would be in addition to an outside counsel guideline. If he means that the law firm states in writing that it will bill by the hour, that’s innocuous; if he means the firm will specify the fee it will charge, that’s ridiculous.

Further, Wire states that fee agreements should ensure “that outside counsel are covered by a sufficient level of professional liability insurance for the matter at hand.” The fee agreement letter provides an additional contractual based claim should there be a malpractice lawsuit. In my experience, inside lawyers who retain a partner don’t give a moment’s thought to the sufficiency of the firm’s insurance coverage and they are highly unlikely to do so.

That’s not all, because “it is imperative that companies investigate and verify security protocols that outside counsel have in place for documents and funds.” Law departments that take the time to do this, or more generally to bullet-proof themselves with an eye to malpractice success have their eye on the wrong ball.