Study: Substantive Errors Still Generate the Most Malpractice Claims

"If you think that most malpractice claims come from administrative errors like the failure to file documents, think again," writes Karen Erger in the April Illinois Bar Journal.

"[Consistently, the ABA's quadrennial study of malpractice claims has] found that substantive errors are the largest category of errors alleged in legal malpractice claims, Erger writes in her IBJ Loss Prevention column, sponsored by the ISBA Mutual Insurance Company. "In the 2016 study, for the first time since the 1999 study, substantive errors account for more than half of alleged errors. And the single most common error is a substantive error, namely 'Failure to Know/Properly Apply the Law,' which accounts for 15.38 percent of claims in the 2016 study. This validates the risk management maxim that dabbling in unfamiliar areas of practice is risky business, and underscores the importance of concentrating your practice on a few areas of law so that you can stay competent and capable in those areas," she writes.

In fact, administrative errors have fallen "from 30.13 percent of claims in the 2011 study to 23.15 percent in the 2016 study," Erger writes. "The study's authors suggest that '[b]etter computer calendaring systems, e-filing, electronic record keeping, and multiple modes of communication with clients appear to have assisted attorneys in managing their law practice.'"

The study also shows that plaintiffs' p.i., real estate, and family law practice continue to generate the most claims, Erger writes. "But we shouldn't jump to the conclusion that these practice areas are disproportionately risky. As the study's authors are careful to point out, the study doesn't include information about how much time lawyers spend in any particular area of law. So it could be that there are lots of claims in these practice areas simply because lawyers are doing a lot of work in those areas," she writes.

The "Profile of Legal Malpractice Claims" is published by the ABA Standing Committee on Lawyers' Professional Liability. Read more insights from the 2016 study in the April IBJ.