Family law: 5 key causes of claims

 

Given the emotionally charged environment of many family law matters, it is perhaps not surprising that family law lawyers are more likely than any other practitioners to report to LIF because of an engagement management issue. These include failures to recognize and manage a client’s expectations of who is doing what or how much it’s going to cost or — most significantly for the family law bar — a client’s expectations of the legal process and what you can realistically accomplish. On average, we hear each month from at least one lawyer because a family law client, for whom the lawyer has provided perfectly good legal services, is unhappy with the result.

Learn more about each cause, including examples from our actual claim files, below.

 

Pie chart: 5 key causes of claims for family law

Date Range: 2003 - 2017

Find out more about each cause, including stories and videos of examples from our claim files, below.

These failures have nothing to do with your competence as a lawyer, but everything to do with how you manage the process of providing legal services. They break down as follows:

Not managing client expectations (75%)
You fail to appreciate the risk inherent in a client or their expectations of the legal process (72%), who is doing what (10%) or how much it’s going to cost (18%).

Claim file example
Lawyer represented a husband in a family law matter. After a settlement agreement was reached, the husband had second thoughts and sought another opinion. He now suggests that he could have obtained a better settlement and that he was "misrepresented”.

Not managing third party expectations (7%)
You don’t appreciate that someone for whom you are clearly not acting thinks that you are somehow protecting their interests.

Claim file example
Lawyer successfully represented a wife in a family law trial. The unrepresented husband now blames the lawyer for his loss, alleging that the lawyer is at fault for producing an expert report at trial that was unfavourable to the husband.

Not managing the retainer (setting up or concluding) or emerging conflict effectively (18%)
At the start of the retainer, you don't adequately think through how you are going to deliver the legal services or if you are able to represent all parties (43%) or, once the legal work is done, you 'move on' without ensuring that the final wrap details are properly attended to (49%), or you fail to manage a conflict that emerges during the retainer (8%).

Claim file example
Lawyer acted for a wife in a family matter. A separation agreement was reached that provided for a split of the husband’s work pension. The matter was concluded, but the lawyer gave no advice to the client about steps to take to achieve the pension division. Years later, the client learns that the husband has retired and his employer has bought out his pension.

These reports involve failing to sort out the legal issues or strategies required to achieve a client’s goal.  They break down into two categories: 

Ignorance of the law (18%)
You don’t appreciate that you don’t know an area of law as well as you need to in order to provide proper advice.

Claim file example 
Lawyer was unaware that the formal offer stayed open until after the start of the trial. As a result, the lawyer failed to advise his client that the offer, made in part to try and avoid the cost of trial, remained extant. The offer was accepted, and the client is not happy..

Not thinking it through (82%)
You know the law, but don’t fully think through all of the legal issues, or what strategies to implement or steps to take to achieve your client’s goal.

Claim file example 
Lawyer acted for the claimant on a division of family assets. The claimant accepted a compensation payment that was based on an appraisal of the family home obtained the year before. The home has now sold for significantly more than the appraisal’s valuation, and the claimant alleges that the lawyer ought to have based the compensation payment on an up-to-date appraisal.

These failures in listening, asking and explaining often involve lawyers making assumptions that later prove wrong.  They break down into two categories:

Communication issues with clients (75%)
You don’t devote enough time or attention to ensure that a client understands you or provides you with the information that you need, or you fail to ask for instructions or consent.

Claim file example
Lawyers acted for a husband in matrimonial litigation, but had difficulty getting information from the husband that was needed for an affidavit. The affidavit was served late and the chambers judge would not allow it into evidence. The husband claims that he was unaware of the consequences of his delay and, because the affidavit was not admitted, his child access has been adversely affected. 

Communication issues with non-clients (25%)
You fail to communicate effectively with either other counsel on a matter or the other people on whom you rely to help you get the job done.

Claim file example
Lawyer acting in a matrimonial dispute placed the proceeds of sale of the family home into the firm’s pooled trust account, pending settlement. Post-settlement, opposing counsel claims that they had agreed that the funds would be placed in an interest bearing trust account. (An immediate report to LIF helped rectify the problem). 

Simple, inadvertent, oversights break down into 3 categories:

Flawed systems (11%)
These mistakes would have been avoided through an effective, firm wide system.  The majority relate to diary system failures, leading to missed limitations. 

Claim file example
Lawyer acted for a spouse in a common-law relationship. The lawyer failed to diarize the date of separation for the purposes of bringing an action for spousal support, and missed the limitation.

Sloppy practices or oops's (87%)
These include the unintentional clerical errors that we make when drafting documents (25%), the mistakes that would have been avoided with a careful review of relevant file material (20%) and the mistakes that occur because we just ‘drop the ball’ and forget or overlook some step that needs to be taken (55%). 

Claim file example
Lawyer drafted a separation agreement that gave the opposing spouse different options for dealing with the former matrimonial home. The agreement is missing the clause that confirms that the opposing spouse is responsible for all mortgage and strata payments until the property is sold.

Delegation without supervision (2%)
You delegate a task to an assistant or a student who makes a mistake, but only because you failed to provide proper supervision.

Claim file example
A lawyer with a busy trial schedule reluctantly agrees to act on an appeal of a decision relating to the division of property. The lawyer asks an articled student to assist. The student is unaware of the deadline for filing the factum, and the deadline is missed. The opposing party has applied to strike the appeal.

This relatively small risk has nothing to do with the quality of legal services you provide. These reports would have been avoided entirely if you simply had the necessary evidence to confirm advice that you gave (40%), instructions that you received (50%), or your dealings with other counsel and parties (10%).

Claim file example
Lawyer acts for the husband in matrimonial litigation. The husband is willing to pay support for his step-child, and expressly instructs the lawyer not to pursue the child’s natural father for support. The husband now has new counsel who alleges that the lawyer’s failure to pursue the natural father was a mistake. The lawyer has no written evidence of the husband’s instructions.

Next Steps?

For the articles and publications that will help you avoid claims in your own practice, review:

Limitations and deadlines
Practice management - risks and tips
Areas of law - risks and tips

And remember, effective risk management also requires you to understand what’s covered under the compulsory Policy – and what’s not.  See Cover Pages and My Insurance Policy: Questions and Answers for more information.

 

Last updated: June 2018