Special Feature: CLE Article #22*
By Joel G. Selik
Even excellent lawyers who do not manage their practice subject themselves to the risks of malpractice and bar complaints. Here are five principles to mitigate the risks.
1. Communication: Do it early, often, and in writing
The major impetus to bar complaints, and clients seeking legal malpractice consultations, is “failure to communicate.” Cool Hand Luke, (1967). For example,
- Not returning phone calls or emails;
- Failing to keep the client updated;
- Not explaining case developments, delays, or next steps;
- Not providing copies of documents.
Clients interpret silence as neglect. Attorneys underestimate how often they need to update clients, and complications arise more from misunderstandings than from actual problems. The solution is clear—communicate.
So how do you communicate in a way that will satisfy clients and still have time to work on the case? The secret is to have systems and rules for both yourself and your staff.
Calendar communications.Do not just rely on what occurs in the case to signal that it’s time to communicate. Instead, calendar regular reminders to update the client. This can easily be done with a standard calendar system, automatically with practice management programs, or with follow-ups that can be marked in email programs.
No change reports.Update the client even when there’s no new development. Many clients do not realize that a case can go for months with little visible progress. Send regular updates summarizing what has happened so far, what you’re waiting on, and what the next steps will be.
Send pleadings, emails, letters, transcripts, medical records, etc. One easy way to demonstrate the case is progressing is to send clients virtually every single document. When you receive or send emails, get in the habit of forwarding the messages. When pleadings are filed, deposition or hearing transcripts are received, or even medical records are obtained, consider automatically sending them to the client.
Limit follow-ups. Keeping the lines of communication open is well worth the extra effort it takes, but it can also result in additional questions. The amount of follow-up emails can be limited by, for example, stating “provided for your information only, no response required” and by letting clients know early on that they will be provided with information just so they can see what is occurring.
Billing. Another important way to show clients what is going on is by sending out billing. A key is to send out bills regularly, even if there was no work done or money due. Do not wait long periods to send bills. If it is a contingent fee case, consider sending a client a statement of the costs expended, even if the client is not required to pay the costs; this shows the client that work is being done and lets them know about the costs that will eventually come out of their share of the settlement.
Respond to all calls and emails. When a client calls or emails, make certain that it receives a response in some fashion. Make it a rule for yourself that all such communications will be responded to, for example, within 24 hours. Even if the response is that you will need to get back to the client, the client will not feel ignored.
2. Know your client, know your scope
Dennis L. Kennedy, professional ethics and malpractice attorney, emphasizes that one frequently overlooked risk is failing to clearly identify the client. While this may seem obvious, it often isn’t—for example, when representing a business entity but not its officers or employees. Attorneys should advise clients in writing not only who they represent, but also who they do not represent. Properly drafted conflict waivers must be explained and signed, and attorneys should consider recommending that clients consult independent counsel.
Kennedy also stresses several key malpractice-avoidance practices: always issue a closing letter at the end of representation; encourage clients to obtain independent legal advice when there are conflicts; clearly define the fee and how it is calculated; never take fees before they are earned, including set or flat fees (there is no such thing as “earned on receipt”); and carefully delineate the scope of representation, including what is and is not part of the representation. Finally, never begin work without a signed fee agreement.
3. Master your calendar, and be the Master of your domain
The most obvious calendaring issue leading to malpractice claims, missed statutes of limitations, is far from the only one. Calendaring issues also occur related to timely expert designations, opposition to motions, discovery cut-off, service of the complaint within 120 days (Nev. R. Civ. Proc. 4(e)), and missed court hearings.
Every lawyer and every firm must have a calendar system that provides for clear and unmissable reminders. And there should be a second back up calendar, if not more than one. Some professional liability insurers provide discounts where dual-calendaring systems are in place. One of the calendars should not be computer-based in case of emergencies.
To make the calendaring systems effective, you must have clear policies, procedures, and rules as to who calendars, when an item is calendared, and what is calendared. Attorney Joshua P. Gilmore, partner at Bailey Kennedy, reminds that the calendaring should be done as soon as the deadline is triggered; waiting allows forgetting. For example:
When a new case file is opened, the attorney and designated staff should both calendar the statute of limitations. Calendar the first client status update (e.g., 30 days), a follow up status check (e.g., 60 days), and an early settlement demand or case evaluation review (e.g., 90–120 days).
When a complaint is filed, immediately calendar the service deadline (120 days after filing, Nev. R. Civ. Proc. 4(e)); service follow‑up dates (e.g., 30 days before expiration); the date to send the complaint out for service, filing jury demand (Nev. R. Civ. Proc. 38(b)(1)); the five‑year trial deadline (Nev. R. Civ. Proc. 41(e)); and advance reminders well before the five‑year deadline.
As soon as a trial setting order comes in, make sure to calendar all accompanying dates, including the trial date, any pretrial conference(s), motion in limine deadlines, exhibit and witness disclosure deadlines, and any other court‑ordered deadlines. Do not calendar only the trial date and assume the rest will be calendared later.
When a deposition notice is received, calendar the deposition date, the deadline to object or seek a protective order, the client notification date, and the deposition preparation meeting with the client.
When an answer is filed or received, calendar any deadlines related to mandatory arbitration exemptions, if applicable; the early case conference date; the deadline to exchange initial disclosures; the deadline to prepare and file the Joint Case Conference Report (Nev. R. Civ. Proc. 16.1); and the anticipated scheduling order issuance date.
The rules and procedures must be clear as to whose responsibility these tasks are, because when they are everyone’s responsibility, they are no one’s responsibility. Gilmore also cautions to be conservative when counting days, as it is better to file early than late.
4. Keeping the “trust” in your trust account
Failures in trust accounting rules are taken seriously, and strictly, by the State Bar of Nevada—even “honest mistakes” or “technical violations.” Daniel M. Hooge, chief bar counsel since 2018, finds that attorneys, especially newer attorneys, often do not recognize that the trust account is not a regular bank account. No monies that belong only to the attorney must ever go into the trust account (except an amount to cover account expenses).
Even experienced attorneys often do not realize the strict rules on withdrawing attorney fees from the trust account, and the client-by-client accounting they require.
Timing is an important consideration. Hooge stresses that attorney fees are not to be left in the trust account too long and must not be taken out too early. As soon as the fees are earned they must be withdrawn. Moreover, attorneys must refrain from withdrawing any fees until they have been fully earned, including fees designated under fixed-fee or flat-fee arrangements.
Bar counsel also frequently observes that attorneys fail to maintain a separate accounting for each client whose funds are held in trust. A separate ledger must be maintained for each client, with accurate records of all incoming and outgoing funds. This ledger must be updated as payments are received and disbursed, and not delayed until the conclusion of the case. At the end of the matter, attorneys must provide a complete accounting upon request. Nev. R. Prof. Cond. 1.15(d).
5. Stay in your lane
Notwithstanding Vinny, in the movie My Cousin Vinny—a newly minted attorney who took on a death penalty case and won—those attorneys who do not “stay in their lane” are bound for trouble. “Staying in your lane” does not mean not taking cases in which you are not skilled, it simply means you must get that expertise by education, co-counsel, or consultation. See Nev. R. Prof. Cond. 1.1, and Model Rules of Prof’l Conduct R. 1.1 cmt. 2 (Am. Bar Ass’n 2026).
According to Joseph P. Garin, legal malpractice defense attorney, “one of the most effective risk management tools a lawyer has is the ability to say no. Accepting work outside your practice area doesn’t expand your skillset—it expands your exposure.” There have been many malpractice cases where highly skilled attorneys take on cases in which they are not experienced and end up being sued for legal malpractice. Examples include a family law attorney whose lack of familiarity with military pensions costs a spouse a lifetime of benefits, a non-judgment collection attorney who does not renew the judgment within the required time window (“within 90 days before the date the judgment expires,” NRS § 17.214(1)), and a non-legal-malpractice attorney calendaring the statute of limitations from the date the attorney stopped representing the client and not from the earlier date on which the attorney stopped representing the client on the particular matter in which the malpractice occurred. See Moon v. McDonald, Carano & Wilson LLP, 129 Nev. 547 (2013).
Conclusion
In an era of increasing client expectations, sophisticated oversight by regulatory authorities, and the ubiquity of digital communication, risk management has become inseparable from the modern practice of law. Each of the five principles discussed—proactive communication, clear client identification and scope, meticulous calendaring, disciplined trust account management, and practicing within one’s competence—reflects a central truth: professionalism is preventive. Lawyers who integrate these systems not only protect themselves from malpractice exposure and disciplinary scrutiny but also elevate the quality and integrity of their representation. Consistent execution, not occasional compliance, is what separates safe practice from sanction. As guardians of our clients’ trust and the legal profession’s reputation, it is our duty to build habits, not hope, into the foundation of our daily practice.
About the author
Joel G. Selik is a certified legal malpractice specialist in Nevada and California. He practices primarily in judgment collection and legal malpractice matters. Joel serves as chair of the State Bar of Nevada’s Standing Committee on Ethics and Professional Responsibility (SCEPR) and editor of the ethics column for Trial Bar News. Joel also serves as an attorney fee dispute mediator and arbitrator. He can be reached at Joel@SelikLaw.com.
About the article
*About the CCBA’s Article #22: “Five Principles for Avoiding a Legal Malpractice Lawsuit or Bar Complaint ” offers 1.0 ethics credit of Continuing Legal Education (CLE) to Nevada lawyers who complete the test and order form per the offer described in the Communiqué (June/July 2026, pp. 22-26) (3.5 MB PDF file). The CCBA is an accredited provider with the NV CLE board.
This article was originally published in the Communiqué (June/July 2026), the official publication of the Clark County Bar Association.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
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