CNA’s claim frequency in the family law area of practice has been consistently higher when compared to all other areas of practice.
As an area of practice, family law includes all litigation and legal services related to antenuptial and domestic relationships, separation and divorce, alimony and child support, child custody, surrogacy and adoption.
The top five causes of family law claims are inadequate representation, failure to settle or unsatisfactory settlement, fee dispute, improperly drawn or recorded documents, failure to follow client’s instructions.
Prevent Family Law Professional Liability Claims
If you practice in family law, follow these tips to prevent experiencing a professional liability claim.
Screen new clients—Be cautious when a prospective client has been represented by one or more prior attorneys for the same matter. Also be wary of a client who is overly concerned with fees or indicates an inability to pay.
Be wary of conflicts—Even where a divorce is uncontested, an attorney cannot ethically represent both parties. Less obvious conflicts involve the prior joint representation of both spouses in a related matter like estate planning or real estate.
Manage emotions and expectations—Keep expectations realistic. Have frequent discussions about the client’s goals and explain all possible outcomes. Maintain integrity and civility with opposing counsel.
Maintain sufficient communication—Complaints related to inadequate communication arise in all practice areas, but clients in family law representations may be working with an attorney for the first time. Consistent communication and patient, thorough explanations of case developments are vital.
Select the right jurisdiction—Early in the representation, discuss with the client whether geographical connections may permit filing in another state. Explain why variations of property distribution rules, grounds for divorce, tax laws and trends in custody or alimony awards would merit filing in another jurisdiction.
Document the file—More than other practice areas, clients in family law may have more financial or emotional considerations. Document discussions about key decisions, including the stated reasons for the client’s decision and presented alternatives. This will counter potential allegations that you mishandled the case or acted without authority.
Ensure adequate discovery/investigation—Explore whether informal or formal discovery is necessary. If a client’s assets or the animosity between parties will not allow for effective representation, initiate formal discovery. Inform the client of potential disadvantages of both strategies and document those discussions.
Retain experts if necessary—If necessary, select a qualified expert and comply with court rules regarding expert disclosures. Many attorneys wisely turn to specialists to draft qualified domestic relations orders (QDROs) as retirement plans have grown more complex.
The information is intended to present a general overview for illustrative purposes only. It is intended to constitute a binding contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. “CNA” service mark in connection with insurance underwriting and claims activities. Copyright © 2019 CNA. All rights reserved.