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Taking proactive steps to minimize risk is the best way to protect yourself from a malpractice claim. Contrary to popular belief, the most claims-prone aspect of practice has nothing to do with errors involving substantive law, which are only about six percent of the malpractice claims that arise. The area of greatest risk involves your relationship with your clients -- in particular the attorney/client communication-related issues, which account for more than forty percent of malpractice claims.

Fundamental to protecting yourself is the ability to effectively manage the attorney/client relationship through its various stages. From opening a file, to doing the ongoing work, to finally closing the file. This column reviews specific areas of sensitivity which give rise to claims at the file-opening stage.

The first step when approached by a potential client is to decide whether to agree to represent the client in the particular matter. Before accepting representation, you should obtain as much information as possible to determine whether you can undertake the work required competently, effectively, and responsibly. This step is referred to as "client screening" or "case screening." If done thoroughly, this step can go a long way to avoiding many of the situations that result in malpractice claims.

To avoid potential problems, use the following checklist for client/case screening:

• In the case of a new client, identify through independent means the client for whom you are going to act. Don't get caught with an imposter on your hands.
  
  
• First impressions often provide a helpful signal about the potential relationship. Trust your instincts.
  
  
• You owe a duty of loyalty, independent judgment, and confidentiality to every client. Is there any apparent or potential conflict of interest that would require you to decline?
  
  
  • Consider whether acting would pose a conflict vis-à-vis another current client, a former client, or lawyer in your firm.
    
  • Do not inquire about confidential information until the issue of potential conflict has been addressed.
    
  • If there is a conflict, consider whether it can be waived by consent.
    
  • If so, has the consent been documented and validated?
    
  • Consider occasions when representation would be inappropriate regardless of the parties' consent.
    
    
• You must have the requisite knowledge and skill to avoid undue risk or expense to the client.
  • Do not pretend to know every area of the law.
    
  • Consider the type of research that may be necessary.
    
  • Consider the use of expert witnesses or the need for legal specialists.
    
    
• Timeliness is always important to clients. Will you be diligent and prompt in meeting time deadlines imposed by either the client or the law (limitation periods)?
  
  
• Cost considerations including legal fees and other expenses must be addressed to allow the potential client to make an informed decision on your suitability as his/her lawyer.
  
  • Consider the client's ability to pay.
    
  • Review with the client your ability to withdraw for non-payment of fees.
    
    
• Do not ignore your suspicions or actual knowledge of a client's unlawful objectives or conduct.
  
  • Avoid assisting the client in criminal or fraudulent activities.
    
  • Have regard to the rules of professional conduct and your concurrent duties to courts, other lawyers, and members of the public.
    
    
• Identify whether client expectations are achievable.
  
  • Are the client's expectations realistic?
    
  • Consider your ability in the future to obtain instructions if the client demonstrates significant emotional or erratic behavior, or has unrealistic expectations.
    
    
• Acting for friends and relatives is a risky business.
  
  • Think twice before doing so.
    
  • Bring the usual discipline of practice to these clients as well.
    
  • Avoid acting outside of areas of expertise, cutting corners, failing to obtain consent or written instructions.
    
    
• Beware the phantom client.
  
  • People you speak to socially or casually or who make limited inquiries may believe that you are acting as their lawyer. Be sure to dispel the myth.
    
  • Consider also the multiple hidden clients who are family members or commercially related. What appear to be common interests at the start can soon turn into conflicting ones.
    
    
• Was previous counsel involved?
  
  • Ask the question: Why is the client changing lawyers?
    
  • Have other lawyers/firms rejected the representation?
    If so, why?
    
  • Consider the client who is eternally unsatisfied.
    
  • Satisfy yourself that the claim or allegations being made are well-founded.
    
  • Be wary of the client who cannot easily agree on your fee and any necessary financial up-front commitment.
    
  • Don't be satisfied with the assumptions made by previous counsel. Make your own factual investigation, and analyze all legal issues so that you can avoid any erroneous assumptions of previous counsel and address possible new developments.