The start of a new year is an ideal time to reflect on the lessons of the past year and to look ahead to the future. Here is a look at some of the hottest legal issues that may arise in the field of legal malpractice and ethics in 2023.

Little Things Make a Big Difference

It is the little things that may continue to make a big difference in 2023. Many legal-malpractice claims, in retrospect, may appear preventable. A simple fix, or another set of eyes, or a reminder about a deadline could have prevented an enormous loss.

Therefore, adopting simple, healthy risk management habits and tools can make a big difference this year. Lawyers can, for example, implement systems for managing deadlines and for reading, handling and filing emails.

They can also check their insurance coverage and make sure they have adequate coverage in place. In addition, lawyers can, if needed, update the security features on their laptops and mobile devices and take simple steps to avoid inadvertent disclosure of confidential information, such as those discussed above.

Lawyers also can take steps to prevent future issues with their clients, such as by using precise engagement letters that clearly set out the parameters of the engagement and maintaining a practice of regular and open communication with their clients.

Risks of Virtual Lawyering

As lawyers and law firms continue to return to offices and courtrooms, while sometimes also maintaining virtual or at-home practices, it is expected that ethical issues specific to remote working will continue to make headlines.

For example, in recent months, bars and courts have come down hard on lawyers who reportedly coached witnesses via text or chat during a deposition or hearing. These situations can result in very serious sanctions against lawyers.

For lawyers who observe (or suspect) inappropriate contact between a lawyer and a witness also can consider steps to help document the misconduct—such as by asking questions about the lawyer’s suspicions during the deposition or by notifying the court if something seems amiss.

It is further expected that, as lawyers maintain some aspect of virtual practice, they also will face a heightened risk of inadvertently disclosing confidential information. Most lawyers are aware of—and take steps to protect—the attorney-client privilege, but some fail to appreciate that the duty of confidentiality is broader.

Rule 1.6 of the ABA Model Rules of Professional Conduct obligates lawyers to protect all confidential information that was gained in the course of a relationship with a client. Because this information is potentially broader in scope than privileged information, it can be more vulnerable to accidental exposure.

The virtual workplace can also complicate other routine parts of the practice of law. For example, the duty to supervise other attorneys and support staff, which is imposed by Rules 5.1 and 5.3 of the Georgia Rules of Professional Conduct, can be more difficult when team members are not in one location and seeing each other in person on a daily basis.

For similar reasons, keeping track of deadlines and avoiding clerical errors can be more difficult. However, that does not mean that the virtual workplace is inherently more risky; it just means that lawyers can be aware of—and alleviate—these issues.

Limits of Zealous Advocacy

Lawyers are first and foremost advocates for their clients’ causes. But the rules clarify that even zealous advocacy must abide by the rules of the adversary system. Thus, lawyers owe duties not only to their clients but also to the justice system itself.

Various rules and regulations make that latter duty clear and impose penalties for those lawyers who cross the line. In federal litigation, Section 1927 authorizes sanctions if a lawyer “unreasonably and vexatiously” “multiplies the proceedings” in any case, which in most jurisdictions requires a showing of bad faith, recklessness, or improper motive. Rule 11 of the Federal Rule of Civil Procedure authorizes sanctions for making representations that are “legally frivolous” or “factually misleading.”

And the ABA Model Rules of Professional Conduct impose similar restrictions, forbidding lawyers from pursuing frivolous claims or contentions and requiring them to act in good faith and with truthfulness toward the courts and others.

The rules also forbid lawyers from counseling a client to engage in conduct that the lawyer knows is criminal or fraudulent or knowingly assisting a client in such conduct. Lawyers who violate these rules can face reprimands, sanctions or disbarment, and can also be exposed to civil and even criminal liability.

Over the last few years, there have been a number of cases distinguishing between zealous advocacy and impermissible improper conduct. That trend is expected to continue. Lawyers are not entitled to automatic deference in pursuing their cases; courts are becoming more serious about imposing sanctions against lawyers who fall short of the ethical requirements.

Indeed, there are limits to what a lawyer can, and should, do for their clients. Although sometimes the line may be hard to see, there are some general guidelines that practitioners can consider in the coming year to help avoid sanctions.

First, lawyers generally have a duty to investigate claims and objectively assess the merits of a case before filing litigation. Notwithstanding this, lawyers are allowed to plead claims upon information and belief, with the understanding that they will get additional information in discovery. But a neutral and candid evaluation of the merits of the case at the outset can help ensure that lawyers can protect their clients’ interests and also comply with ethical obligations.

Second, if you don’t know where to draw the line, ask. Attorneys can seek the advice of their firm’s in-house counsel or of outside counsel specializing in liability issues to help determine the best course of action.

Finally, it is helpful to make sure that clients are aware of the risks of an extremely aggressive litigation strategy. Having a forthright conversation about those risks, and how taking such an approach can actually harm the client’s interests and result in sanctions, can help guide the outcome.

These simple steps, and others like them, can go a long way toward reducing risk in the new year.

Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team and is co-author of “California Legal Malpractice Law” (2014).

Alanna Clair is a partner at the firm and focuses on professional liability defense.

Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”

Tim Larsen, a managing associate at Dentons, contributed to this article.