In South Carolina as well as in many of the other jurisdictions in which we write business, we find a surprising number of claims that result from a mistake that can be best summarized as working under false assumptions. Whether it’s due to a heavy workload (not enough time), a lack of concern (not my responsibility), a belief that another was properly trained (assumed competency) or any number of other rationalizations, the bottom line is that mistakes happen and it is risky to assume that they won’t.
Two solutions that will decrease the risk of an error arising due to working under false assumptions are appropriate supervision and file review. Proper file oversight via staff supervision and file review is a necessary risk management responsibility that cannot be ignored for any reason. If you ignore the responsibility, sooner or later you will likely be faced with a malpractice claim. Let’s take a look at two examples.
Consider a busy real estate practice where the attorney has assigned to only one staff member the following: title search responsibilities, preparation of the settlement packages and other administrative tasks. Consider also that this one staff member already is managing an excessive file load. Under these circumstances it is not hard to imagine a mistake, such as listing and paying the wrong party as mortgagee. This kind of mistake can happen because the attorney is working under erroneous assumptions. The attorney may be assuming that the staff member can handle a heavy caseload and is properly trained. In other words, the attorney assumes that the staff member is competent under these work conditions. These false assumptions can form the basis of a malpractice claim. The disturbing fact is that it’s easy to avoid relying on such false assumptions.
One simple method would be to regularly check the settlement documents’ accuracy. Another method would be to review proper office procedures. Monitoring the reasonableness of each employee’s workload and doing regular assessments of work in progress are other ideas worth implementing. A third idea is to review all of the firm’s open files on a regular basis.
Attorneys must supervise their employees, and that means ensuring that all staff have the necessary tools and training, as well as an appropriate environment, for the performance of their duties. Rule 5.3 of the Rules of Professional Conduct makes attorneys responsible for ensuring that all staff are competent.
Many attorneys recognize the need for a periodic file review in their practice. However, there is a second circumstance where attorneys overlook the file review process, and unfortunately that circumstance is when file review is most necessary. The erroneous assumption is the attorney’s basis for avoiding file review. Once again, the erroneous assumption is attorney competency. In this second example, consider that Attorney Deeds is going into retirement or is leaving the practice of law to embark on a new career. He makes arrangements to transfer files to other attorneys or, in some instances, another attorney or firm will step in and buy the entire practice in order to expand the client base rather quickly.
Imagine that Attorney Deeds transfers his files to Attorney Wills. During this transition Attorney Wills’ workload can jump substantially, almost overnight. Sometimes Attorney Wills assumes that all of Deeds’ prior work on these files has been sound, and Wills may be inclined toward this assumption because of his significant increase in workload. Or, Wills may assume that he will be liable only for the work he does on a going-forward basis. Neither of these assumptions is valid.
When assuming responsibility for files originated by another attorney (Deeds), Wills should conduct a thorough file review of all incoming Deeds files. But what if Wills rationalizes avoiding such review with the “time saver” excuse? In that situation, Wills decides that because of his increased workload, all of Deeds’ files ought to be in good shape. Do not make this mistake. In our current litigious age, we must review the incoming transferred files – every one of them. Once again, ALPS has seen firms incur losses for failing to do so. Once you assume responsibility for a client’s matter, you become liable for that matter. You can’t have it both ways.
I can appreciate that discovering prior mistakes can create a feeling of conflict. Keep in mind that this isn’t necessarily always a black and white matter. Sometimes you will discover mistakes, and it is difficult to inform the prior attorney that you must advise the client that an error has occurred. Remember, though, some attorney errors can be repaired before they result in a malpractice claim or lawsuit.
The above two examples demonstrate the consequences of working under false assumptions. No matter how you might rationalize your false assumptions, take a moment to ask whether you are making false assumptions in your practice. Assumptions of attorney competency can be particularly troublesome. As described above, you can make such erroneous assumptions regarding your staff too. It is particularly easy with staff members who have been with your firm for quite some time, or with attorneys who have practiced for a number of years. Still, it pays to check others’ work, no matter what level of trust you might place in that other person. Mistakes will happen, and you should not assume otherwise.
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