What to Do When a Legal Malpractice Claim May Be On The Horizon
Erin McCartney, Esq.
January 5, 2023
Reading time: 4 minutes
For a lawyer, there is nothing worse than the gnawing feeling that something at the office is not quite right. Whether it is mulling over the reason behind three unreturned phone calls to a client, second-guessing whether a brief was filed on time, or pondering why a client is several months late paying a bill, this anxiety can be stressful to say the least. It is inevitable that every attorney will make a professional mistake at some point during their career. The important thing to understand is that the actions taken upon discovering the error may determine whether it can be repaired or exacerbated.
Avoiding errors is obviously ideal. Studying the sources of and trends in legal malpractice claims can help limit exposure to claims. And while understanding the trends and common errors that contribute to legal malpractice claims is important, taking proactive risk management steps to avoid becoming part of the statistics is even more essential. Risk management training and education services can help avoid claims, however they can be costly, especially for smaller firms or attorneys starting their own practice. Therefore, it may be beneficial to look for a legal malpractice insurance carrier that offers complimentary risk management services, such as CLE courses, best practice tips or even a risk management hotline, through which an expert can assist in answering questions or concerns. Such services can generate substantial savings both now and down the road as they may provide the answer that avoids a large claim.
The thought of facing a legal malpractice claim is daunting enough, but the uneasiness of not knowing what to do next can be just as unnerving. Unfortunately, many attorneys respond to mistakes in ways that make matters worse. While most attorneys will try to remedy an error, in the absence of a solution, some will choose to ignore the problem, hoping it will just go away. Concern over the cost of defending a claim, or an unfamiliarity with policy coverages available can lead to this “wait and see” approach. If an attorney waits until a formal claim or lawsuit is commenced before involving their legal malpractice insurer, they are really doing themselves a disservice. There may be coverage for legal services or errors of which the attorney is not aware, such as coverage for the defense of disciplinary proceedings. Moreover, the carrier may offer preclaim assistance, which can potentially minimize or avoid a lawsuit altogether.
Even worse than ignoring an error is attempting to conceal it. Concealment is not only ethically verboten, but may also create a conflict of interest between the lawyer and the client’s best interest. If a legal malpractice case is filed, the attorney is in trouble, as precedent shows juries are as sympathetic to attorney conflicts of interest as they are to big tobacco.
When a mistake is identified, the best approach is to immediately advise the client and the carrier. Keep in mind that advising of a mistake is very different from admitting that malpractice has occurred. When attorneys are upfront and honest about an error, clients are more inclined to be understanding. Realistically, though, no matter how much they like their attorney, clients are probably going to look for recompense if they are damaged. This is why early notification to the carrier is crucial as well.
If a legal malpractice suit is filed, the attorney should provide the client with the carrier’s information and then let the carrier handle the matter. Although the attorney may think that they are the best person to defend themselves, it is difficult for a lawyer to be objective about his or her own work. An experienced professional liability claim handler not only understands what constitutes a viable legal malpractice claim, but is also well aware that clients can threaten legal malpractice claims for several reasons, including to avoid paying a bill. Legal malpractice defense can be a thorny and complicated area of practice. Therefore, when a lawyer’s work or character is being questioned, the defense should be steered by a professional liability claims team that specializes in the legal malpractice arena.
No attorney wants to be in the position where their judgement or reputation is questioned. Knowing how to avoid a claim and where to turn in the event that a claim is filed is crucial. Having proper risk management protocols in place, partnering with the right carrier, and understanding the benefits of early notification can help. The legal malpractice carrier should be viewed as an expert and an ally. Do not think of a legal malpractice insurance carrier as “the fixer,” only to be consulted in times of crisis; rather, think of them as a trusted advisor to lean upon for professional, expert advice guided by the attorney’s best interests.
Additional Client Relations content
ABA Model Rule 2.1 identifies a lawyer as counselor and instructs that the lawyer shall exercise independent professional judgment and render candid advice.
Your client may have the venue booked and flowers ordered, but do they need a prenup? As always, be sure to check your jurisdiction’s laws concerning the drafting and enforceability of prenuptial agreements. However, below is a brief checklist to consider before counseling your client concerning a prenup:
ABA Model Rule 4.2 prohibits attorneys from communicating with a person who is known to be represented by another attorney about the subject matter of the representation, unless that attorney has given consent or you are authorized by law or a court to speak with that person.
Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].
© 2023 AttPro Ally. All rights reserved.