Many lawyers and professionals are preparing to return to their office space. Things are beginning to get back to normal. But for most lawyers and their clients, the last year was anything but normal. Lawyers and clients both were often working from home, with lawyers providing services remotely and even appearing for court over Zoom.

Experts in the industry have long observed that financial pressures for clients and general instability often lead to an increase in claims against lawyers. Ames & Gough, an insurance broker, recently released its 11th annual survey on lawyers’ professional liability claims. The report summarizes the legal malpractice claims reviewed or insured by 11 leading lawyers’ professional liability insurers in 2019-2020. Collectively, these insurers represent about 80% of the Am Law 250 firms.

Although the survey data indicates that the number of legal malpractice claims has roughly stayed constant over the last year, the cost to defend and settle claims against lawyers continues to grow. And looking ahead to the future, experts and insurers alike fear that claims will continue to increase in frequency and cost. Further, claims against lawyers over COVID-19 are expected to emerge more over the next year.

Drawing on this recent data, below are some ways to prevent or minimize legal malpractice risks and claims.

Evaluate Conflicts

The annual survey confirmed that allegations of conflicts of interest are still the most frequently alleged error in claims against lawyers. Although conflicts can be complicated, the use of established systems to identify and resolve conflicts of interest can help reduce claims. But the system is only as good as the information it is provided. A conflict of interest might go unnoticed if lawyers are not thorough about identifying the right parties involved.

Just because a conflict of interest is identified does not mean the representation must end. Indeed, there might be opportunities for waivers or other steps to help resolve the conflict. But ignoring potential or known conflicts can create risk.

Another type of conflict can arise when a lawyer is litigating the impact of their own work. This can happen when a lawyer drafts a contract on behalf of a client and then the client is involved in litigation over the scope or meaning of that contract. In some instances, such litigation could create tension for the lawyer simultaneously advocating for a client and defending her or his own work as the drafter. There is a risk that the litigation could result in an adverse holding that could then give rise to a legal malpractice claim, relating to either the drafting of the contract or the decision to litigate the firm’s own work (or both).

Although this is not a traditional conflict of interest, it is expected that disputes involving contract enforcement or termination might increase in the post-pandemic world, especially for companies that relied on or attempted to enforce force majeure clauses or related terms. Lawyers and firms can take steps to evaluate whether they are well-suited to litigate disputes over the contracts they drafted or whether it is better to get other counsel involved.

Use an Effective Calendaring System

The recent data confirms that the second-most commonly alleged malpractice error involves missed deadlines. Although sometimes a deadline is missed even where a firm has invested in docketing or calendaring systems, the use of those systems can help mitigate claims or provide the firm with a defense of reasonableness (and undermine any argument that the firm was careless in failing to adopt a docketing system).

Over the past year, it has been helpful for lawyers to stay on top of the various court and other official orders issued in response to the pandemic that impacted deadlines, including discovery deadlines and statutes of limitation. Those in the industry expect claims alleging that lawyers failed to account for closures and deadlines during the pandemic. But an effective calendaring system can be an essential tool for reducing this risk.

Stay Informed

Another commonly alleged malpractice error, as confirmed by the recent Ames & Gough survey, relates to lawyers purportedly not knowing the law. When a lawyer doesn’t apply the law correctly, misunderstands it or fails to keep up with changes that have been made to laws within their jurisdiction, they risk having a legal malpractice claim made against them. A dissatisfied client could also allege that the lawyer’s failure to understand the law violates the lawyer’s obligation of competence under Georgia Rule of Professional Conduct 1.1.

Ames & Gough indicated that “it’s likely we will see some additional legal malpractice claims as a result of errors made” due to the rapid changes to laws as a result of the COVID-19 crisis and resulting economic downturn. Looking ahead, economic slowdowns can put financial pressure on lawyers, which can lead to lawyers dabbling in specialized areas of law in which they may lack experience and knowledge—leading to claims. Financial pressure on corporations may also mean that they point fingers at their advisors, including lawyers, which can also lead to claims of malpractice.

Communicate, Communicate, Communicate

Nearly every insurer surveyed reported that poor communication between lawyer and client was a contributing factor to legal malpractice claims. Rule 1.4 of the Georgia Rules of Professional Conduct lays out lawyers’ obligations to communicate with clients.

Every client relationship is different. Depending on the circumstances, lawyers may try to actively communicate with their clients at all stages of a matter, which can help clients understand how the matter is progressing. Where feasible, lawyers may also try to document in writing any significant advice provided to the client, so that the client can seek clarification if necessary. Such communications can also help avoid misunderstandings later.

Although no one knows exactly how post-pandemic claims against lawyers will shape up as the national quarantine winds down, lawyers and firms can take steps to help reduce their exposure.