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Lawyers’ Liability: The Game of Risk & Reward

As the legal landscape evolves, understanding both the recurring and emerging risks and challenges that our clients face is crucial. In this program, we will discuss some of the data compiled in the recent ABA Profile of Legal Malpractice Claims and similar reports, examining not only the micro — facts and figures, where administrative and substantive errors are being made, and especially problematic areas of practice, but also the macro — an exploration of key developments, including AI and technology, the economy, emerging regulatory concerns including a discussion of the relevant Model Rules of Professional Conduct, cybersecurity, the “transactional” nature of modern practice, and tort inflation. We will also provide some insight on how to minimize exposure to these professional liability claims and stay ahead of the trends.

Learning Objectives:

Identify and Analyze Common Legal Malpractice Risks: Participants will be able to interpret data from the ABA Profile of Legal Malpractice Claims and similar reports to recognize recurring administrative and substantive errors, as well as high-risk practice areas

Evaluate Emerging Trends and Challenges in Legal Practice: Participants will assess the impact of evolving factors such as AI and technology, economic shifts, tort inflation, and the transactional nature of modern legal work on professional liability exposure

Understand Ethical Considerations: Participants will apply relevant Model Rules of Professional Conduct to LPL trends and understand the interrelation between them

Develop Strategies to Minimize Professional Liability Exposure: Participants will formulate proactive approaches to reduce the risk of malpractice claims and adapt to evolving legal practice trends through improved risk management and compliance practices

Duration of this webinar: 60 minutes

Originally broadcast: August 21, 2025 11:00 AM PT

Webinar Highlights

This webinar is divided into section summaries, which you can scan for key points and then dive into the sections that interest you the most.

00:00 Introduction

Tracy L. Kepler, the speaker, is introduced as the Risk Control Consulting Director for CNA's Lawyers Insurance Program. Tracy outlines the focus of the webinar on emerging data and trends in legal malpractice cases and relevant model rules of professional conduct. She emphasizes the importance of understanding these trends to minimize the risk of malpractice complaints. Tracy provides her contact information for further inquiries.

05:26 Legal Malpractice Data and Trends

Tracy discusses the ABA profile of legal malpractice claims, which provides insights into emerging trends and data. She conducts a poll to gauge audience perceptions of which practice areas receive the most malpractice claims. Wills, estates, and trusts have risen to the top of the list, surpassing other areas like family law and personal injury. Solo practitioners are identified as having the most claims due to isolation and lack of resources. Tracy explains the common sources of claims, such as poor preparation or missed deadlines.

15:27 Competence and Diligence in Legal Practice

Tracy elaborates on the concept of competence in legal practice, emphasizing thoroughness and preparation. She discusses the importance of collaboration skills, emotional intelligence, and financial literacy in avoiding malpractice claims. Technological affinity and health and well-being are also crucial for maintaining competence. Diligence involves constant effort and promptness in representing clients, avoiding procrastination. Tracy stresses the need to control workload and consider withdrawal if obligations cannot be met.

27:10 Client Communication and Ethical Obligations

Effective client communication is essential to prevent malpractice claims, as outlined in Rule 1.4. Tracy advises establishing communication protocols at the beginning of the attorney-client relationship. She warns against fraudulent concealment and emphasizes honesty. The importance of explaining matters to clients to allow informed decision-making is highlighted. Tracy discusses the trend of increased claims in wills, estates, and trusts due to wealth transfer and client capacity issues.

37:58 Emerging Trends in Legal Liability

Tracy notes the rise in intellectual property claims due to increased complexity and high stakes. She observes aggressive tactics by plaintiff firms and a decrease in criminal claims. Settlement suits are increasing, where clients feel forced to settle for less than their case's worth. The frequency of claims is decreasing, but the severity and dollar amounts are rising significantly. Tracy emphasizes the importance of early intervention by insurers to mitigate claim severity.

43:55 Due Diligence and Risk Management

Tracy discusses the ethical obligations under ABA Model Rule 1.2(d) regarding client fraud. She emphasizes the need for due diligence throughout the representation to avoid aiding fraudulent conduct. Red flags include poor finances, reluctance to meet in person, and urgent last-minute requests. Tracy highlights the risks of failing to perform due diligence, including legal malpractice and reputational damage. She advises having a committee for client checks and creating a checklist for due diligence.

01:00:53 Strategies to Minimize Malpractice Risk

Tracy emphasizes the importance of avoiding dabbling in multiple practice areas to reduce malpractice claims. She advises against using boilerplate language without careful review and recommends using checklists and ticklers. Conflict-checking systems should be in place from the beginning and throughout the representation. Tracy stresses the need for clear engagement letters to prevent confusion and matter creep. She concludes by highlighting the importance of documenting client decisions and obtaining informed consent.

Please note this AI-generated summary provides a general overview of the webinar but may not capture all details, nuances, or the exact words of the speaker. For complete accuracy, please refer to the original webinar recording.

Speaker

Tracy L. Kepler Director of Risk Control Consulting
CNA's Lawyers Insurance Program

Tracy L. Kepler is the Director of Risk Control for CNA’s Lawyers’ Insurance Program. In this role, she leads the lawyers’ professional liability team, is accountable for business results through delivery of risk control services and designs and develops content and distribution of risk control initiatives relevant to the practice of law. Tracy reviews and directs the evaluation and assessment of loss exposures and the application of risk control policies, guidelines, regulations, and drives the resolution of risk control issues and problems. She also collaborates with the underwriting and claims teams to develop and execute strategies for the profitable growth of the program. Read More ›

Continuing Legal Education (CLE) Credits

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California CLE

Status: Approved

Credits: 1.00 Legal Ethics

Earn Credit Until: June 30, 2026

New Jersey CLE

Status: Approved

Credits: 1.20 Ethics/Professionalism

Earn Credit Until: September 9, 2026

North Carolina CLE

Status: Approved

Credits: 1.00 Ethics

Earn Credit Until: February 28, 2026

Ohio CLE

Status: Approved

Credits: 1.00 Attorney Professional Conduct

Earn Credit Until: December 31, 2026

Texas CLE

Status: Approved

Credits: 1.00 Legal Ethics/Professional Responsibility

Earn Credit Until: July 31, 2026

This presentation is approved for one hour of Legal Ethics CLE credit in California, one hour of Ethics CLE credit in North Carolina, and one hour of Attorney Professional Conduct CLE credit in Ohio. This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.20 hours of total CLE credit. Of these, 1.20 qualify as total hours of credit for Ethics/Professionalism. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours, of which 1.00 credit hours will apply to Legal Ethics/Professional Responsibility credit.

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